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]
I was pleasantly surprised to see that none of the commentators challenged this basic theoretical frame. They all seem to agree that the Constitution is designed to divide power between the government and the people. And no one specifically challenged the claim—which is clearly a controversial claim—that the Constitution as a whole is best construed to grant citizens an affirmative, collective right to maintain effective control over our government.
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.
[1] David L. Sloss,
People v. The Court: The Next Revolution in Constitutional Law, at 5 (2025)
[hereinafter, People v. Court].
[2] See id.,
at 65-67.
[3] Id., at
91-100, 103-110.
[4] Id., at
41-44.
[5] Id., at
44-46.
[6] Id., at
47-49.
[7] Id., at
51-54.
[8] Id., at
182-84.
[9] Id., at
185-90.
[10] Id., at
100-03.
[11] Id., at
143-44, 150-53.
[12] Id., at
181.
[13] Ryan D. Doerfler
& Samuel Moyn, Democratizing the Supreme Court, 109 Cal. L. Rev.
1703, 1727 (2021).
[14] See
Sloss, People v. Court, at 143-44.
[15] Id., at
152.
[16] Reynolds v.
Sims, 377 U.S. 533, 565 (1964).
[17] See
Sloss, People v. Court, at 24, 49.
[18] Mark Tushnet, The
Story of City of Boerne v. Flores, Federalism, Rights, and Judicial Supremacy,
in Constitutional Law Stories, at 498-99 (Michael C. Dorf, 2d ed. 2009).
[19] John Hart Ely,
Democracy and Distrust: A Theory of Judicial Review 103 (1980).
[20] 252 U.S. 416
(1920).
[21] See
Sloss, People v. Court, at 144-50.
[22] See id.,
at 113-23.
[23] Id., at
137-43.
[24] Id., at
137.
[25] Ely, supra
note 19, at 183.
[26] Michael W. McConnell,
Institutions and Interpretation: A Critique of City of Boerne v. Flores,
111 Harv. L. Rev. 153, 182 (1997).
[27] Mark A. Graber,
Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform
After the Civil War xxxii-xxxiii (2023).
[28] Reynolds v.
Sims, 377 U.S. 533, 565 (1964).