Balkinization: Sloss V. The System

Sloss V. The System

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

Martin Flaherty

The other day my wife noticed a fresh copy of People v. The Court on my desk. She commented, “Wow, that friend of your David Sloss sure does write a lot.” Among other things, she knows I’ve long been a sometimes published fan, with similar interests.   She may, or may not – her reading tastes unaccountably do not center on constitutional theory – have appreciated that Sloss’s prodigious output also reflects a commensurate range. Nor would she necessarily know that neither his output or range come at the expense of rigor. In many ways, People v. The Court features all these qualities, sort of a mini/magnum opus on nothing less than how the judiciary should might be restored to a proper role in a well-functioning constitutional democracy. In that spirit, the following reflections seek to touch upon a range of book’s wide-ranging topics, from abstract to technical. This sampler will include: 1) the underlying foundations for what the book proposes; 2) its rejection of interdisciplinary asymmetry in method common to constitutional theory; and 3) the missing specter of the unitary executive unbound, and 4) the promise and impediments to the book’s visionary deployment of international human rights law. For the purposes of these comments, rigor will be left entirely to Sloss.

General

People v. The Court is an ambitiously provocative manifesto. Like other manifestos of note, it is concise. It nonetheless manages to bring together many of virtues typical Sloss’s work. The book features an impressive grasp of constitutional history in areas that are understudied, revisionist, or both. At the same time, the book features Sloss’s expertise in the most cutting edge aspects of international human rights law and advocacy.   Throughout it makes its case with a thoroughness, qualitative and quantitative, rarely sought by student law review editors. Yet with this work Sloss does more than simply combine his many interests and strengths into a single work. Instead, he does so to present a work that offers nothing less than a visionary, indeed radical, proposal for constitutional reform via Nine Principles.

The way forward goes something like this. People v. The Court mediates the two with a new theory of judicial review that advocates strong judicial commitment to representation reinforcement, weak judicial oversight of fundamental rights, and judicial deference to Congress with regard to federalism. To show that constitutional transformations are possible, Sloss offers four: the Lochner era, the New Deal revolution, a period of transformation, and the aptly named Federalist Society regime. Turning to further reforms, the book promotes three basic reforms: judicial command that districts maximize competitive seats; ban partisan primaries; and require ranked choice voting. To combat the plague of internet misinformation, Sloss again turns to the court, here, among other things, to lesson protection for election-related falsehoods and permit regulation of internet providers. Then, as only he can, Sloss audaciously weaves together constitutional and international human rights law. He shows first that the two used to have a long co-dependency, and then proposes that US courts again invoke international law for at least provisional fundamental rights protection. As for Congress versus the states, the vote goes to judicial deference to Congress and the political processes. How to do all of this? Sloss more or less assumes a series of New Deal electoral landsides sufficient to undertake Supreme Court reform, making the electorate truly democratic, and – to bring things full circle – a reformed Court adopting his new theory of judicial review the better to serve the people.

Foundations

To begin at the end, People v. The Court puts forth so bold a vision that the question arises what foundations Sloss has in mind for his radically reformed edifice. Otherwise, were his reforms nonstarters, little point in vetting them. And as his admits, readers are apt to ask, “Aren’t these proposals wildly unrealistic?” (p. 179). His answer appears to lie in a New Deal version of an Ackermanian constitutional moment. That is, a new constitutional revolution will require a popular movement that will result in the Democratic Party, or its equivalent, gaining the currently gilded White House, winning two consecutive Congressional elections, and on the strength of that secure a progressive majority on an ultimately reformed Supreme Court. All this is daunting, but not unprecedented, as far as it goes. Yet it also suffers from a personal pet peeve about Sloss’s treatment of the term “ popular sovereignty. “ True enough, as Sloss says, that “popular sovereignty is a contested concept” without “one fixed meaning.” (p. 10) He nonetheless conflates two key versions that Ackerman has always been at pains to distinguish. For Ackerman, popular sovereignty rests with “We the People” as constitution makers, and not with merely with “Us the Biennial Electorate.”[1] And not just Ackerman.   So thought such leading Founding Federalists as Wilson, Madison, Hamilton, and Marshall.[2]

That distinction carries at least two relevant consequences. The first implicates legitimacy. As Ackerman himself emphasizes, constitutional change as a constraint on normal politics makes sense if it reflects a sustained national super-majority, self-conscious deliberation, and some degree of geographic distribution. Only then can a movement claim the title of “We the People” as popular sovereign. More importantly, achieving this level of entrenched legitimacy will be more difficult than People v. The Court makes it seem. Getting “We the People” onstage for the reforms Sloss has in mind will likely require a major crisis sufficient to create a sustained popular movement, led by reformers with self-conscious commitment to something like Sloss’s reforms, that will decisively triumph in repeated elections. As a start, the “good news” may be that Trumpism presents precisely the kind of crisis that may generate the necessary pushback. Conversely, Trump’s assault on democratic mechanisms, to say nothing of social media and oligarchic funding, may ensure that We the People remain offstage. Either way, realizing Sloss’s New Deal may be significantly more challenging that achieving FDR’s.

Constitutional Symmetry v. James Madison

The conflation of “We the People” with “Us the Electorate” creates another problem, which is a certain downplaying of majoritarian tyranny. To its credit, People v. The Court masterfully avoids a pathology I have called “constitutional asymmetry.”[3] Typically, law professors tend to be very good at shredding legal doctrines and analysis, only to assume the most simplistic conceptions of political science. This asymmetry characterizes efforts to reign in the judiciary in particular. The sophistry of judges, once exposed, must bow to the “will of the people.” Often unexamined it whether electoral processes actually reflect popular will, and to what degree. None of this holds for People v. The Court. To the contrary, Sloss is at pains to diagnose and prescribe solutions to the many ills plaguing American democracy, whether gerrymandering, campaign spending, or non-competitive elections – ills exacerbated by the Court’s willful indifference. In fact one of the book’s central theme holds that without these reforms, elections simply cannot lay claim to reflecting popular opinion.

But even reformed normal elections, without more, can claim the mantle of popular sovereign. A radically reformed electoral process beats the current social media fueled minoritarian oligarchy. By definition it would be more democratic. It would also tend to produce more progressive results. Yet not always. Whether Alabama, Northern Ireland, Turkey, or various states in Eastern Europe, experience shows that genuinely democratic majorities can both trample fundamental rights and further disadvantage minorities. Along with popular sovereignty itself, the discovery of majoritarian tyranny ranks as one of the great political theory insights made by the Constitution’s Founders. That insight has seldom been more out of fashion. The idea appears outdated, as Mark Graber recently pointed out in a recent op-ed, not least thanks the Supreme Court’s historically lousy record in addressing this problem.[4] Yet that does not mean that the problem does not still manifest. Nor does it mean that the courts have not, and cannot, play a critical role.   That role, of course, is the judiciary – and for that matter the political branches – applying the will of the popular sovereign when in conflict with the popular will. To be sure, Sloss does not abandon this mechanism, but he does demote it to “weak judicial review” in the manner of the UK Bill of Rights Act, that is, drawing on international law for a veto that can be overridden.   If majoritarian tyranny indeed constitutes a problem, the concern arises whether this protection will be enough.

Separation of Powers?

Perhaps the most surprising potential reform is one that People v. The Court does not raise. Sloss is fully aware that any menu of radical constitutional reform must address not just rights but structural doctrines. These conventional divide among federalism and separation of powers doctrines. People v. The Court advances a sage approach with regard to the division of power between the Federal government and the states. Yet, other than the role of the judiciary, the book has almost nothing to say about separation of powers, including and especially perhaps the greatest current threat to American democracy – the existential challenge of a unitary executive run wild.

On federalism, the book makes a strong case that has an honorable provenance. For the most part Sloss argues that the courts should stay out. This prescription first means that the judiciary should recommit to Garcia v. San Antonio Metropolitan Transit Authority,[5] which in turn means it should get out of the business of trying to concoct state sovereignty shields against Federal legislation, which in turn means that the states’ have sufficient protection through their loaded influence in national political processes. This approach echoes the noted work of Herbert Wechsler, and has the further virtue of comporting with the Constitution’s text and history.[6] Similar virtues also apply to policing the scope of Federal power in the first place. United States v. Lopez[7] and United States v. Morrison[8] may not (yet) have prompted a return to pre-New Deal Commerce Clause jurisprudence. But before it does, as with sovereignty shields, so too with limits on Federal authority. The bases for judicial limitation flirt with the arbitrary. Conversely, the reasons to defer to the popular will (not sovereign) in a reformed electoral system invite judicial deference, at least where fundamental rights are not at issue.

The book’s treatment of states makes its failure to deal with executive power all the more surprising. For much of US history, states may well have been a central threat to fundamental liberties, above all for minorities. Decades in the making, today the crown rests with the executive. No plan for radical constitutional reform can fail to address this threat. Of possible proposals, here are two arguably in line with Sloss’s project. One arises from increasingly rare attempts by Congress to check the President, whether through legislative vetoes, limits on the removal power, or vesting the appointment of lesser Federal officers in the courts or cabinet level officials rather than the President. Here, as with federalism, the courts should stay out. Or at least they should follow the approach put forward by, of all people, Justice Rehnquist in Morrison v. Olsen. There the Court rejected assuming the foregoing powers fell exclusively to the executive, but instead ask whether Congress’s intervention created so egregious an imbalance among the branches as to compel rare judicial intervention.[9]

Conversely, one other reform to reign in the imperial dictatorial presidency would entail greater judicial intervention. This solution would involve cutting down root and branch judicial deference to the executive in foreign affairs and national security. Not only would this approach address the basis of the Court’s most notorious abdications of its duty. It would have the additional appeal of restoring the judicial to the role it had played for much of the nation’s history, as in part reflected in Sloss’s own rigorous scholarship.

The Opportunities and Challenges (White Supremacy) of International Human Rights

Perhaps only a fellow advocate can appreciate Sloss’s career-long commitment to restoring international human rights law to the position it once held in the US legal system. In yet another bold move, People v. The Court all but sneaks in this laudable goal as the solution to entrenching a revived yet limited role for the judiciary in safeguarding minority and fundamental rights apart from representation reinforcement. This feat would echo approaches adopted in Canada, South Africa, New Zealand, and the United Kingdom. The basic idea would have US courts rely on the minority and fundamental rights protected in modern international human rights treaties to (reluctantly) invalidate government measures not or all time, but subject to Congressional override. On one hand, international human rights advocates would at least live to see the US catching up to at least the nominal commitments of most of the rest of the world. Rights advocates in general would also appreciate that often greater and more detailed protections that international human rights treaties afford. On the other hand, those concerned with judicial imperialism would take comfort in a legislative override preserving democratic self-government and sovereignty at the end of the day. The result, as the relevant chapter heading proclaims, would be, “weak review” but “srong rights”

“Weak review, strong rights” has a definite appeal, yet it also faces substantial – though not insurmountable – obstacles. Doubtless the greatest hurdle issues from an American legal parochialism that disparages anything international. As Sloss has recounted here and elsewhere, this form of American exceptionalism has many sources.[10] One stems from national sovereignty. Another flows from federalism. Yet the most potent factor Sloss has also downplayed in earlier work – good old fashioned home grown American racism.[11] It is the combination of this self-evident truth with the commitment of human rights law to non-discrimination that stranded international law at the border post-World War II and keeps it there still. People v. The Court nonetheless merits at least one friendly amendment consistent with its goals and adventurous proposals. One surprisingly easy way to achieve international “weak review, strong rights” would be to reintroduce all international human rights treaties as Congressional-Executive Agreements, either discretely or as an omnibus. The custom has been for the President to negotiate human rights instruments as full on Article II treaties. But custom can evolve, often radically, and shifting such conventional to the Congressional-Executive track would hardly be the boldest idea associated with Sloss’s project. It would, moreover, achieve just what this part of the project seeks: a robust yet democratic protection of fundamental rights in line with the rest of the world.

Coda: Bernie, AOC, Mamdani . . . Sloss?

People v. The Court, as befits a first-class work of scholarship, clearly can generate further discussion and debate, as the preceding scattershot commentary suggests. Yet it does more than that. It might have, but does not, stop at usual critiques of the judiciary, especially those content merely to tweak once conventional progressive faith in courts the better to appear original and contrarian. Instead, it attempts nothing if not a bold and comprehensive agenda for radical reform. In this, it reduces yet maintains the role of the judiciary in original ways. More importantly, it addresses the many present ills of the system that go beyond the judicial role.   In the current climate, Sloss’s proposals can appear even more unlikely than the “socialist” agenda put forward by familiar figures exiled to the far left of the Democratic Party. In Sloss’s case, however, any radicalism has less to do with left and right than with rule of law versus autocracy. Like those other radicals, however, Sloss and his book play a vital and still understaffed role. As the both conservatives and autocrats have learned, only by staking out radical positions can a bold agenda achieve any success. With any luck, People v. the Court will have done just that.

Martin Flaherty

Charles and Marie Robertson Visiting Professor
School of Public and International Affairs
Princeton University

Leitner Family Professor of International Human Rights
Founding Co-Director, Leitner Center for International Law and Justice
Fordham Law School
mading@princeton.edu

[1] Bruce A. Ackerman, 1 We the People: Foundations, 266-94 (1991).
[2] See Martin Flaherty, Peerless History, Meaningless Origins, 1 Journal of American Constitutional History, 671 (2023).
[3] Martin Flaherty, Constitutional Asymmetry, 69 Fordham Law Review 2073 (2001).
[4] Mark A. Graber, Justice Barrett’s Campaign Biography, Washington Monthly (Nov. 2, 2025).
[5] 469 U.S. 528 (1985)
[6] Herbert A. Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Columbia Law Review, 543 (1954); Jesse H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1980).
[7] 514 U.S. 549 (1995).
[8] 529 U.S. 598 (2000).
[9] Morrison v. Olson, 487 U.S. 654, 685 (1988).
[10] David L. Sloss, The Death of Treaty Supremacy: An Invisible Constitutional Change (2016).
[11] Martin Flaherty, But Maybe Everything That Dies Someday Comes Back, 32 Constitutional Commentary (2018).

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