The Judicial Restoration(?) of Democracy

Guest Blogger

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

Mark Rush 

          In The People v. the Court, David Sloss has rolled several potentially separate books into a single tour de force  of the current, disappointing state of American democracy and the role of the Supreme Court in fostering that decline.  He covers numerous topics, including 

•        the state of American democratic backsliding and the extent to which the Supreme Court has “nurtured creeping authoritarianism” (7);
•        the corresponding extent to which it is necessary to rectify the Americas ship of state because, as American democracy goes, so goes “the future of freedom in the world” (Ibid.).  As he says: “democratic decay in the United States is not an isolated phenomenon; it is one element of the worldwide trends of creeping authoritarianism and democratic erosion.  It is impossible to prove that  developments in the United States are causing democratic erosion elsewhere, but there is no question that the United States, as the most powerful nation in the world, has a significant influence on global trends.” (6-7);
•        a reconsideration of John Hart Ely’s political process jurisprudence.
•        a call for courts to shift away from constitutional discourse and, instead, base their decisions on international human rights treaties.  This , along with a return to Ely’s vision, would engage Congress more effectively in the task of constitutional interpretation because Congress approves all such treaties.  Relying upon Congressional intent would therefore, defuse tension between the court and congress regarding interpretive authority and finality; 
•        a call for the re-establishment of “epistemic” information authorities to clean up the clutter of misinformation on social media that undermines the integrity of the democratic process. He alludes, for example to the role the networks once played in presenting and gatekeeping news. 

There are numerous other threads in Sloss’s argument that are driven by his desire to return governing power to “We the People.” He would do this by reining in judicial power, returning governing power to the elected branches, and ensuring that  the electoral process clearly translates the popular will into governing authority that the people can hold accountable. 

          Sloss’s is a noble endeavor and his are noble goals.  However, in the end 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.  On the one hand, he identifies particular decisions that pushed the country towards the contemporary state of democracy in which it finds itself.  On the other, I wonder whether the Supreme Court could have done much to stem the tide of democratization (or, at least, deconcentration) of political power  that characterized campaign reforms in the 1970s.  No doubt, the court could have taken a stronger stand against gerrymandering and supported congressional attempts to constrain campaign spending by deciding cases such as Buckley v. Valeo, Rucho v. Common Cause, Shelby County v. Holder, and Citizens United differently. On the other, Congress certainly has had and retains the power to respond to adverse Supreme Court decisions with new legislation.  Congress also could bring pressure to bear against gerrymandering in the states.  It is one of three coequal branches that has the power to check and balance the other two.  But, Congress has not done so. 

          David suggests that we would have a better Congress if the court had rendered decisions in a manner that strengthened the electoral process and enabled the people to hold it more accountable.  I do wonder whether this would have made much difference.  This is not to strike a nihilist tone. Instead, I raise this doubt in the context of a constitutional system that does constrain the power of the government.  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. 

This power shift has taken place outside the scope of the constitution in a political  universe that is expanding and filling with financially- and technologically enhanced private powers that rival those of the government.  With that in mind, I suggest that David’s calls to return governmental control to “We the People” in the way he hopes may be too late or, simply, manifest a vision of government that is antiquated.  Unless government gains tremendous power relative to 1) private powers and 2) commensurate with the unprecedented challenges facing the challenges of the  21^st century, strengthening democratic processes may prove meaningless if, in the end, the scope of politics renders those democratic processes essentially performative. 

          So, I wonder how Sloss’s Supreme Court would be able to exercise enough power to control congress and the private actors that clearly exercise disproportionate control over elections and information.  This is a constitutional system grounded in the Madisonian vision of an extended republic comprised of countless, competing factions.  Somehow, Madison conceived that elected officials would be able to separate themselves from and govern those factional forces that put them into office.  Sloss echoes this. 

Accordingly, he calls upon Congress to add teeth to the human rights treaties that it and the Supreme Court could use to protect human rights: 

 Congress could strengthen democratic control over federal lawmaking, without weakening protection of human rights, by removing the [non-self-executing] declarations from human rights treaties and encouraging courts to apply those treaties, instead of applying the Constitution, to protect fundamental rights. (134) 

Similarly, he envisions the creation of a National Endowment for Fact-Checking (102) that, somehow, would be insulated from factional influence and could therefore oversee the production and dissemination of quality information for the electorate. 

          But, what force would change the mind of a Congress that already rendered such treaties non-self-executing?  What power could that National Endowment exercise in a constitutional universe occupied by social media platforms and private actors such as Elon Musk, Jeff Bezos, George Soros, and others?  National politics are not affected by international and cyberforces. 

          The reforms of the nomination process, the weakening of political parties, the evolution of campaign spending, and the advent of social media have so decentralized political power that it is easy to draw a line from the early 1970s to the election of Donald Trump and the media and information landscape that lacks any “epistemic authority” to check and filter information (98 ff.).  Kathleen Bawn, et al. described this democratized, privately-controlled politics in this way in 2012: 

interest groups and activists are the key actors, and coalitions of groups develop common agendas and screen candidates for party nominations based on loyalty to their agendas. This theoretical stance contrasts with currently dominant theories, which view parties as controlled by election-minded politicians. The difference is normatively important because parties dominated by interest groups and activists are less responsive to voter preferences, even to the point of taking advantage of lapses in voter attention to politics.[1] (2012) 

In such a system, elected officials act as members of “cartels” that seek to perpetuate their time in office by erecting barriers to entry from potential competitors.[2]  Granted, Sloss calls upon the Court to abide by Ely’s political process jurisprudence and break up cartel-like practices such as gerrymandering, discriminatory campaign spending laws, and so forth.  But, to the extent that powerful private actors can control the political process, they also have the capacity to respond to judicial decisions that would undermine that control. 

          Sloss hopes that the implementation of his suggestions would empower the masses to control political elites by electing legislators who would ignore the latter in favor of the former.  Somehow, the Supreme Court could render decisions that would bring this about.  But, it is only the supreme Court—not the supreme branch of government.  Sloss’s criticisms of the court’s assertions of interpretive supremacy in Cooper v. Aaron and City of Boerne v. Flores would seem to undermine one’s hopes that a stronger Supreme Court could control the political forces that dominate the electoral and legislative process.  While, I share his hopes, I do wonder whether and how the Supreme Court could tap such a reservoir of power, exercise supreme authority for a short time to rectify the democratic process, and then simply cede that power in hopes that, somehow, private power would not return and continue to grow as it has in the past 50 years. 

          In the end, I agree with much of Sloss’s diagnosis of what ails contemporary American democracy.  Alas, American democracy manifests the same symptoms that characterize democratic “backsliding” around the world.  This is not a new phenomenon. Fareed Zakaria detailed the rise of illiberal democracies more than a quarter century ago.[3]  The pandemic required governments to centralize power[4] in the face of one unprecedented global crisis while the looming threat of climate change would, some say, justify the perpetuation of that same “creeping authoritarianism” (7) Sloss decries.[5] 

          Thus, in a world characterized by unprecedented private power and challenges of unprecedented global scope, one wonders whether a return to the democratic vision Sloss sets forth is possible.  It may be the case that the world has advanced further along the spectrum ranging from anarchy to authoritarianism than scholars care to acknowledge.  If so, than a democratic vision such as Sloss’s may prove to be anachronistic even if it is attainable.  In such a world, recalibrating the balance of power between courts and the elected branches will matter little if, together, they do not have the capacity to address global threats and private power. 

Mark Rush is Waxberg Professor of Politics and Law, Director of International Education, Washington and Lee University. You can reach him by e-mail at rushm@wlu.edu.