Democracy and the Strong Judicial Review Catch-22

Guest Blogger

For the Balkinization Symposium on David Sloss, People v. The Court: The Next Revolution in Constitutional Law (Cambridge University Press, 2025).

Eric Segall

          I greatly appreciate being asked to participate in this symposium about Professor David L. Sloss’ provocative and thoughtful new book “People v. The Court.”  Sloss’ call for a “revolution” in constitutional law is brave and timely. The novelty and richness of his proposals to return real power to “We the People” make it difficult to do justice to the book in a short essay. This review focuses mostly on his suggestion that the Supreme Court exercise strong judicial review in cases implicating elections and voting rights.

          Sloss argues that the United States is suffering from severe democratic erosion. He says that the “reality of government in the United States today is at odds with the principle of popular sovereignty. Today, the U.S Supreme Court is the driver and We the People are mere passengers.” 

Sloss wrote the book before President Trump’s second term began so the unique issues raised  by the President’s behavior over the last 11 months are not discussed. Nevertheless, the book is timely in its critical appraisal of where we are as a country.

          An observation to emphasize another day is that, ironically, prior to coming power the Federalist Society claimed the mantle of judicial restraint, but once gaining power, as Professor Keith Whittington has observed, a new intellectual construct was created by right-wing scholars to allow conservative judges to impose their own policy preferences-originalism without restraint. To his credit, Sloss avoids most of the well-worn and now mostly useless debates about originalism and living constitutionalism.

          Instead, Sloss focuses on how the Supreme Court has distorted free and fair elections, federalism, and the separation of powers. His main targets are the Court’s evisceration of Congress’ enforcement powers under the Reconstruction Amendments in Borne, the Court’s anti-democracy decisions in cases such as Citizens United, Shelby County, and Rucho, and the Court’s enforcement against the states of the Bill of Rights leading the justices to substitute their judgments for those of state legislatures in too many cases to name. Taken together, these doctrines have severely weakened both federalism and separation of powers and put the justices in charge of our country instead of “We the People.”

          To remedy these woes, Sloss sets forth several major proposals: 1) courts should apply strong judicial review in election cases to improve our democracy and allow the people to better control what is supposed to be their government; 2) courts should use international law not our Constitution to decide most individual rights claims so that Congress can overturn these decisions by interpreting our treaties differently than the Court (weak judicial review); and 3) the Court should apply deferential judicial review to federalism claims that Congress has exceeded its proper authority because the current doctrine transfers too much power from the elected Congress to the unelected Court.

          Sloss does not shy away from explicitly recognizing that proposals one and three are consistent with John Hart Ely’s important (to the academy) book Democracy and Distrust, and much of the rationale for those proposals are derivative of Ely’s work (and there’s nothing wrong with that of course). Proposal two is original, and Sloss concedes that Ely would have strongly disagreed with it and so would, I suspect, 95% of today’s legal scholars and 99% of today’s judges (I like it but that’s beside the point of this essay).

          Proposals one and three are possible to imagine being adopted by the Court at some point in the far away future. Proposal two has no chance of being adopted in any of our lifetimes. Would the book be stronger without Sloss arguing that international law should replace the Constitution as the font of individual rights? Yes, because then he could have devoted more time to the two other proposals that are possible with just a change in two of the Court’s nine seats. It is easy to imagine a Court with five liberal democrats overturning many of the Court’s absurd “money is speech” precedents, voting rights and redistricting cases (especially Rucho), and the Court’s recent federalism decisions from the commerce clause to the Reconstruction Amendments.

          The book is worth reading because of proposals one and three and because much of the history in the book is richly told and clearly expressed. And the tone of the book, that the Court has failed this country, is exactly the right one at this particular constitutional moment, even if Sloss mostly ignores the disfunction of the congress and the presidency.

          I would, however, caution the reader that Sloss’ proposal number one is fraught with danger. He argues that the Court should overturn its campaign finance decisions from Buckley to Citizens United and beyond; overrule Rucho and allow federal judges to outlaw partisan redistricting schemes; and revisit many first amendment cases so that Congress can enact something like the old fairness doctrines so that as many voices as possible can be heard when it comes to elections and other democratic issues. He also wants the Court to overturn Shelby County and better enforce voting rights.

          Some of these changes require  judicial deference (campaign finance decisions and other speech cases) and some judicial aggression (partisan redistricting and other anti-democracy behaviors by the state and federal governments). Sloss concedes, however, that his suggestions are unlikely, if not impossible, to succeed as long as we have the Federalist Society Court. So, he argues that the next time Democrats control both houses of congress and the presidency, they should enlarge the number of justices and pack the Court so that a majority would likely agree with Sloss’ suggestions. He suggests a number of different ways to reach that result all of which he accurately labels “political hardball,” which he, again accurately, describes as the method the Republicans used to gain their current 6-3 majority. He also mentions Senate democrats would likely have to repudiate the filibuster for any of this to happen.

          In a future where democrats are strong enough to control all three branches of the federal government, and there is enough political interest to install the structural revolution Sloss advocates, it is likely there would be no need to reform the Court so dramatically. There are many ways to avoid Supreme Court decisions without such strong medicine that, of course, the GOP would use during the next cycle, and the race to the bottom would go deeper and deeper until the Court is the size of a baseball roster.

          A Congress controlled by democrats could enact new voting rights legislation with detailed factual findings that a Democrat President would sign that would undo much of the damage done by Shelby County and other anti-voting rights decisions. Congress could also set rules regarding voter identification and Sunday voting hours.

Such a Congress could pass campaign finance legislation that controls spending in ways still untouched by the Court’s overly-activist first amendment campaign finance decisions such as super-strong disclosure requirements and more honed bans on expenditure alignments between politicians and Super PACs. Congress could also enact rules about partisan redistricting.

Of course, a hostile Court could strike down these laws on flimsy or even frivolous grounds but the Court rarely successfully fights coordinated political activity for long periods of time that is popular with both the people and the elected branches. In a world where democrats wield the power that Sloss envisions, the Court would lose most of the battles, at least on the ground.

The danger of using the Court, as opposed to the political branches, to improve our democracy so aggressively, is that an anti-democratic institution can only make permanent radical change with the cooperation of more democratic institutions and political elites. But in our system of minority rule, there will almost always be countervailing forces to offset changes imposed by unelected, life-tenured judges, and history has shown that progressive change by a liberal Court often results in the rise of effective conservative counter-vailing forces outside the courts.

In the end, “People v. The Court,” provides an excellent descriptive account of the crisis we are in and how we got here-mainly through the Federalist Society Court. But an “American Constitution Society Court,” would only be a temporary and likely ineffective solution. The way to return power to “We the People,” is to return power to the people and force the Court to engage in extremely deferential judicial review across all spectrums of constitutional law. 

Eric Segall, Ashe Family Chair Professor of Law, Georgia State University College of Law, Esegall@gsu.edu