Judicial Review and Democratic Renewal

Guest Blogger

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

David L. Sloss

I want to thank Professor Balkin for hosting a symposium about my book, People v. The Court: The Next Revolution in Constitutional Law. I also want to thank all of the distinguished scholars who took time to read the book carefully and offer critical, constructive comments. I am truly honored that they devoted substantial effort to engage with my work in a meaningful way. Their essays raise a number of thoughtful, interesting points. I cannot possibly respond to all those points here, so I will highlight a few key issues.

When I speak about the book for general audiences, I begin by highlighting three points. First, American democracy is broken. Second, the Supreme Court is partly to blame for the process of democratic decay. Third, the Supreme Court could become part of the solution, instead of being part of the problem. In reviewing the essays published on this blog, there appears to be consensus on the first point. Moreover, of the six scholars who posted commentaries, Professor Mark Rush is the only one who seriously contests the second point. However, the essays reflect a very broad range of views on the third point. Accordingly, this essay will focus primarily on the question whether it is realistic to think that the Supreme Court could become an engine for pro-democracy reform, and if so how.

Before addressing those issues, let me quote a passage from the book’s Introduction that provides a theoretical frame for the project:

Current constitutional doctrine is divided between “rights” issues and “structural” issues. Structural constitutional law focuses on the division of power among government actors. That framing ignores a key structural feature of the Constitution: the division of power between the government and We the People. Constitutional rights doctrine focuses on negative, individual rights, not affirmative, collective rights. By ignoring affirmative rights, constitutional doctrine ignores the collective right of We the People to exercise control over our government. The Supreme Court’s constitutional doctrine has erased We the People from the Constitution. If one views the Constitution through the lens of the Court’s constitutional doctrine, We the People are invisible. We do not appear in the Court’s structural constitutional doctrine because that doctrine focuses exclusively on government actors. And we do not appear in the Court’s rights doctrine because it focuses on negative, individual rights, not affirmative, collective rights.[1]

The Problem of Private Power

As noted previously, Professor Rush questions whether the Supreme Court is really to blame for the decline of American democracy. In his words: “one wonders whether the Supreme Court has actually had the power he suggests and whether it could exercise sufficient power to repair the problems of American democracy.” He adds: “By my lights, private power has amplified so rapidly and to such an extent over the last half century that government actually finds itself in a situation in which it needs to acquire or reacquire enough power to enable it to control private actors and play referee among them.”

I agree with Professor Rush that the concentration of economic power in the hands of billionaires and large tech companies poses a significant challenge for democratic self-governance, because the plutocrats are able to convert economic power into political power. And I agree that the Supreme Court alone cannot solve this problem. In my view, it will take a coordinated effort among all three branches of the federal government to prevent billionaires from exploiting their wealth to capture the machinery of government and direct that machinery toward private ends, rather than the public good.

Professor Rush—and Professors Samuel Moyn and Eric Segall in somewhat different ways—all suggest that the Court is ill equipped to solve this problem, and that we should rely [exclusively?] on the political branches. In contrast, I believe the Court must play a vital role if we want the government to provide a meaningful check on the political power of plutocrats. In People v. The Court, I explain how the Court’s campaign finance jurisprudence has contributed to the concentration of political power in the hands of wealthy individuals.[2] The book also explains how the Court’s First Amendment jurisprudence has helped large tech companies gain excessive control over our information ecosystem,[3] and why a healthy information ecosystem is essential for democratic self-governance. Therefore, at a minimum, if we want the political branches to exercise effective control over concentrated private power, the Court will need to assist Congress by making fairly radical changes to both campaign finance doctrine and general First Amendment doctrine to give Congress greater flexibility to regulate in these areas.

Formal versus Informal Constitutional Amendment

Professor Deborah Pearlstein contends that the book’s focus on informal constitutional amendment is misplaced, and that we may need to use the Article V amendment process to achieve the types of pro-democracy reforms that many of us advocate. In her words: “the task of seeing Sloss’s plan from concept to implementation . . . struck me as involving so monumental an undertaking of education, advocacy, coalition building, and persuasion . . . that I found myself anxious for his explanation of why this pathway to constitutional revolution is to be preferred to the equally daunting alternative route: Article V amendment.” Likewise, Professors Martin Flaherty and Carol Nackenoff also questioned whether my proposals for a constitutional revolution outside the Article V process are politically realistic.

I agree that the pathway to informal constitutional revolution is daunting. Moreover, I agree with Professor Pearlstein that, from a process-oriented perspective, a formal Article V amendment would be preferable to the type of informal revolution I propose in People v. The Court, assuming that the practical obstacles on both pathways are equally difficult to overcome. However, as a practical matter, I think the Article V path confronts even greater hurdles than the process of informal constitutional revolution that the book proposes.

Granted, either process will require a substantial “undertaking of education, advocacy, coalition building, and persuasion,” to quote Professor Pearlstein. But, as the book explains in detail, there are four key precedents for the type of informal constitutional revolution I envision: the Lochner revolution,[4] the New Deal revolution,[5] the Warren Court revolution,[6] and the Federalist Society revolution.[7] Indeed, if history is a guide, there will almost certainly be a future, informal revolution in constitutional law. The only questions are when this will happen, and what key doctrinal changes will define the next era of constitutional history.

The United States has not utilized the Article V process to carry out a major constitutional revolution since the aftermath of the Civil War. This is not surprising, because Article V requires ratification by 38 states to approve a constitutional amendment. In contrast, the constitutional revolution proposed in People v. The Court merely requires Congress to enact four landmark statutes. Those four statutes, respectively, would address: Supreme Court reform,[8] election-related issues,[9] electronic amplification of misinformation,[10] and judicial enforcement of human rights treaties.[11] All four statutes could be enacted by a simple majority vote in both Houses, subject to the caveat that legislators might have to overcome a filibuster in the Senate and a potential Presidential veto. These are not small hurdles, but I think they are far easier to overcome than the obstacles to Article V amendment.

As I acknowledge in the book, to implement and consolidate these changes the Democratic Party “must have sufficient popular support to win at least two successive Presidential elections and retain a majority in both Houses of Congress for much of that eight-year period.”[12] I agree with Professor Pearlstein that this will require a major undertaking in political advocacy. Even so, I think the proposed pathway is more realistic (or perhaps less unrealistic) than the Article V process.

Institutional Reforms vs. Personnel Reforms

Professor Samuel Moyn describes my book as a form of “radical centrism,” a label that I happily embrace. He argues that progressives must “drop the centrist part of radical centrism for reform or revolution to succeed.” More specifically, relying on his co-authored article with Ryan Doerfler, he chides me for focusing on “personnel reforms,” rather than advocating “more structural institutional change” to the Supreme Court.

Professors Moyn and Doerfler advocate proposals to disempower the Supreme Court. Their co-authored article highlights three types of proposals to disempower the Court: jurisdiction-stripping legislation, “proposals to require a supermajority to declare federal legislation invalid,”[13] and proposals for a legislative override of the Supreme Court’s constitutional decisions. I agree that all three ideas merit serious consideration. However, assuming that Professors Moyn and Doerfler want to enact these reforms in the form of federal statutes, the current Justices would almost certainly hold that those statutes are unconstitutional (depending on which specific variant of the proposals is enacted). Therefore, in my view, personnel reform—i.e., changes in the ideological orientation of the Justices—is a necessary prerequisite for institutional reform.

Moreover, it bears emphasis that People v. The Court proposes several structural, institutional reforms. Whereas Professors Moyn and Doerfler want to reform the Court (an admirable goal), my proposed structural reforms focus on the electoral process and the information ecosystem. In my view, structural reforms to the Supreme Court will yield only slight pro-democracy benefits unless they are accompanied by reforms to the electoral process and the information ecosystem. And, to reiterate, the legislative reforms I propose will likely fail on constitutional grounds unless they are preceded by personnel changes to alter the ideological composition of the Court. For this reason, also, personnel reform is a necessary prerequisite for institutional reform.

Finally, my proposed legislation to authorize judicial enforcement of human rights treaties would accomplish, by alternative means, some of the goals that Moyn and Doerfler seek to accomplish by disempowering the Court. First, my proposal would permit legislative override of the Court’s decisions in individual rights cases. Unlike their proposal for legislative override, though, mine would accomplish this goal in a way that is constitutionally valid under existing doctrine.[14] Second, my proposal includes a functional equivalent of their proposed jurisdiction-stripping legislation. Specifically, the proposed statute would “include language that encourages, but does not require, federal and state courts to practice constitutional avoidance in all cases where a litigant’s constitutional claim or defense could be resolved by applying a treaty provision that is judicially enforceable under the statute.”[15] This proposal would achieve some of the goals of their proposed jurisdiction-stripping legislation, but in a way that is much less vulnerable to constitutional challenge.

In sum, many of my proposals complement Professor Moyn and Doerfler’s proposals for structural, institutional change. Moreover, at least some of my proposals are less vulnerable to constitutional attack than their proposals.

Doctrinal Revolution

People v. The Court proposes a revolution in constitutional doctrine that is designed to restore the proper division of power between the government and the people, and to vindicate our collective right to maintain effective control over our government. The basic framework consists of three elements:

• Strong judicial review to correct flaws in the electoral process and to help ensure that all citizens have an “equally effective voice”[16] in choosing our elected representatives.
• Weak judicial review to protect individual rights.
• Deferential judicial review for all federalism-based challenges to Congress’s legislative powers.

Weak review, as the book explains, does not mean weak protection for individual rights. To the contrary, weak review could actually strengthen protection for individual rights, but judicial decisions related to individual rights would be subject to legislative override.

Professor Flaherty notes correctly that this framework says nothing about the division of power between Congress and the President, an issue that has gained greater salience during President Trump’s second term. As the book explains in a brief footnote, which readers might easily miss, my original outline included a chapter on separation of powers to address these issues. However, as the project developed, I decided that the constellation of issues related to Presidential power merited a separate book. I expect to publish that book within the next few years.

Interestingly, none of the commentators directly criticized the third element of my proposed framework: deferential review for federalism questions. That fact is undoubtedly attributable to an (unintended) political bias in selecting commentators. I assume that most Fed Soc scholars would disagree vehemently with my proposal for deferential review on federalism issues. Here, I note in passing that my proposal to abolish incorporation doctrine (more on that below) would likely yield a greater benefit in protecting state autonomy from unwarranted federal intervention than all of the Court’s federalism decisions since 1990, viewed in the aggregate. (See pp. 175-78 for elaboration of this argument.)

Professor Segall challenges the first element of my proposed framework: strong judicial review for election-related claims. He advocates “extremely deferential judicial review across all spectrums of constitutional law.” He warns that “the danger of using the Court, as opposed to the political branches, to improve our democracy . . . is that an anti-democratic institution can only make permanent radical change with the cooperation of more democratic institutions and political elites.” I agree fully with Professor Segall that radical, pro-democracy reforms will require cooperation between the Court and other important actors. That is why I advocate a “partnership model” of the relationship between the Supreme Court and Congress.[17]

Mark Tushnet describes the Warren Court’s version of the partnership model as follows: “The Court saw itself as collaborating with Congress to develop a set of fundamental principles that would permanently order U.S. society. Sometimes Congress would push the ball forward, and the Court would approve. . . . On other occasions, Congress would actively seek out the Court’s assistance.”[18] Implicit in this account is the idea that, in some cases, the Court is the best institution to “push the ball forward.” Moreover, as John Hart Ely recognized decades ago, the need for strong judicial review is most acute when “the political market is systematically malfunctioning.”[19]

Today, there is widespread agreement across the political spectrum that the political marketplace in the United States is systematically malfunctioning. The problem of democratic decay is sufficiently grave that no single institution, acting alone, has the capacity to repair the damage. If we want to restore “We the People” to our rightful position as sovereigns in a democratic constitutional order, the Court must play an affirmative role, in partnership with Congress. Therefore, in my view, contra Professor Segall, strong judicial review to correct malfunctions in the political marketplace must be one element of a broader strategy in which the Supreme Court and Congress work cooperatively to restore the vitality of American democracy.

Weak Judicial Review for Individual Rights

Professors Flaherty and Nackenoff both challenge my proposal for weak judicial review. Before responding to their critiques, let me briefly summarize the proposal. The United States is a party to three major international human rights treaties: the International Covenant on Civil and Political Rights (ICCPR), the Convention on Elimination of Racial Discrimination (CERD), and the Torture Convention. Under Missouri v. Holland,[20] Congress has the constitutional authority to enact legislation to authorize judicial enforcement of those treaties. Most of the individual rights protected under current constitutional doctrine are also protected under the ICCPR, or the CERD, or both.[21] The venerable canon of constitutional avoidance encourages courts to avoid constitutional questions if a case can be decided on non-constitutional grounds. If Congress enacts legislation to make human rights treaties judicially enforceable, and courts consistently apply the canon of constitutional avoidance, then courts would decide most individual rights claims by applying human rights treaties, instead of applying the Bill of Rights or the Fourteenth Amendment. This would give us a system of weak judicial review—similar to the system that U.S. courts applied through most of the nineteenth century[22]—because Congress would retain the power to enact legislation to override judicial decisions based on human rights treaties.

Professor Flaherty argues that my proposal downplays the risk of “majoritarian tyranny.” In his words, “experience shows that genuinely democratic majorities can both trample fundamental rights and further disadvantage minorities.” He is concerned that granting Congress a power of legislative override would unduly weaken protection for individual rights because Congress might use its power to override judicial decisions that are rights-enhancing.

Granted, this is a risk. However, as the book explains in greater detail, recent experience in the United States suggests that democratic legislatures have been more protective of minority rights than the Supreme Court.[23] “In fact, since the 1970s, the Court has frequently used its power to invalidate or weaken laws and policies designed to benefit disadvantaged minority groups.”[24] To quote Ely again, we need strong judicial review “for those situations where representative government cannot be trusted, not those where we know it can.”[25] Our national experience since the 1970s suggests that democratic legislatures are more trustworthy than courts when it comes to protecting minority rights. If that conclusion is correct, then we do not need strong judicial review to protect minority rights; we should trust the democratic process.

My proposal for weak judicial review includes a rejection of incorporation doctrine. Courts would apply human rights treaties in conjunction with the Supremacy Clause—instead of applying the Bill of Rights via incorporation doctrine—to protect individual rights from infringement by state governments. Professor Nackenoff contends that my repudiation of incorporation doctrine is misguided. She cites several leading scholars to support her conclusion: “I am not at all convinced that arguing against a constitutional basis for incorporation is going to be persuasive.”

Scholarly debates regarding the originalist bona fides of incorporation doctrine are far too voluminous to address in detail. In People v. The Court, I quote Michael McConnell as follows: “the remedy for the violation of the fourteenth and fifteenth amendments was expressly not left to the courts. The remedy was legislative, because in each the amendment itself provided that it shall be enforced by legislation on the part of Congress.”[26] Similarly, Mark Graber notes that the authors of the Fourteenth Amendment regarded “Congress as the institution primarily responsible for interpreting and implementing the post-Civil War amendments.” They rarely “mentioned the federal judiciary when constitutional reform was on the table.”[27] The central problem with incorporation doctrine, from an originalist perspective, is that incorporation doctrine construes the Fourteenth Amendment as a judge-empowering amendment, even though the amendment was clearly designed to empower Congress, not the courts.

A Litmus Test for New Supreme Court Justices?

Professor Nackenoff’s post raises an excellent question: “I wonder what kind of litmus tests a Democratic President would need to use in making appointments, given all the arenas in which constitutional doctrine has been misguided and/or (as Sloss might have it) run off of the rails.”

I suggest that the next Democratic President should apply two litmus tests. First, Supreme Court appointees should be committed to using strong judicial review to help ensure that all citizens have an “equally effective voice”[28] in choosing our elected representatives. Second, appointees should also be committed to deferential judicial review for all cases in which litigants raise federalism-based challenges to Congress’s legislative powers. Note that I am not proposing a litmus test involving weak judicial review for individual rights claims.

Frankly, this proposal (which is not included in the book) is based on pragmatic considerations. As Professor Segall says in his post, the proposals for strong judicial review in election cases and deferential review in federalism cases “are possible to imagine being adopted by the Court at some point in the far away future.” In contrast, Professor Segall argues that the proposal for weak judicial review for individual rights claims “has no chance of being adopted in any of our lifetimes.” Although I am somewhat more optimistic, I think his assessment of the relative likelihood of Supreme Court adopting each of the three prongs of my proposal for judicial review is exactly right. A litmus test based on the strong review and deference prongs would enable the Court to make great progress in fighting ongoing democratic decay (assuming a sufficient number of judicial appointments). In the near-to-medium term, I would be quite happy with two-thirds of a loaf, leaving the weak review prong for consideration by future generations.

David L. Sloss is John A. and Elizabeth H. Sutro Professor of Law at Santa Clara School of Law. You can reach him by e-mail at dlsloss@scu.edu.