Sloss v. The System
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.” And not just Ackerman. So thought such leading Founding Federalists
as Wilson, Madison, Hamilton, and Marshall.
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.”
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. 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,
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. Similar virtues also apply to policing the
scope of Federal power in the first place.
United States v. Lopez
and United States v. Morrison
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.
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. 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. 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
Bruce A.
Ackerman, 1 We the People: Foundations,
266-94 (1991). See Martin
Flaherty, Peerless History, Meaningless Origins, 1 Journal of American Constitutional History,
671 (2023). Martin
Flaherty,
Constitutional Asymmetry, 69
Fordham Law Review 2073 (2001). Mark A. Graber, Justice Barrett’s Campaign
Biography, Washington Monthly
(Nov. 2, 2025). 469 U.S. 528 (1985) 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). 514 U.S. 549 (1995). 529 U.S. 598 (2000). Morrison v. Olson, 487
U.S. 654, 685 (1988). David L. Sloss, The
Death of Treaty Supremacy: An Invisible Constitutional Change (2016). Martin Flaherty, But Maybe Everything That
Dies Someday Comes Back, 32 Constitutional Commentary (2018).