The Radical Center in Contemporary Legal Thought

Guest Blogger

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

Samuel Moyn

A brand of “radical centrism” has become commonplace in legal scholarship. Indeed, this p.o.v. has been in the ascendant in American politics generally ever since Donald Trump descended the golden escalator. The advocates of this new stance, institutionalists and staunchly so before, currently envision action that will transform our institutions, but in the name of restoring the most familiar and recognizable politics — roughly what those getting edgy today wanted before, but once dreamed of achieving without the edginess.

Before the rise of this new posture, the main goal of liberal constitutionalists in the face of an ongoing right-wing counterrevolution at the Supreme Court over half a century was centrist but not radical. It involved longing nostalgically for better judges, while bargaining with serving ones centrist enough to embrace liberal outcomes every so often. Never was any challenge to the judiciary as an institution justified, nor any call for reforming it fundamentally. (Those were things the right did.) In contrast to this liberalism hostage to its institutions, most remarkable among centrist legalists today has been the mainstreaming of a desire to make the judiciary great through radical plans. The main question is exactly how much radicalism is now required, and in what form.

According to his compelling new book’s subtitle, David Sloss sees it as nothing short of revolutionary to bring what is known as “process theory,” along with human rights, to the rescue of an American higher judiciary now so clearly irretrievable for liberal projects. If centrists like John Hart Ely and Ronald Dworkin had had to live the indignity of 2016 and since, they might have teamed up and written Sloss’s book—and for this reason it is quite illuminating to consider both its appeal and its shortcomings.

Please note: I don’t mean at all intend to demean radical centrism (it is the worldview of almost all of my colleagues in law schools), let alone to defame Sloss (who has done a great job instantiating the worldview in creative and provocative ways). I just am trying to figure out how to place the book’s enterprise in political relief, and to contribute to Sloss’s admirable enterprise of figuring out our options.

As his central goal, Sloss hopes to “update Ely’s theory for the twenty-first century,” articulating a democracy-guaranteeing and -promoting process argument for judicial review, adding to it a weaker form of review for individual rights. But Sloss has nothing to say about the fact that the American judiciary, long in possession of Ely’s plan, has moved further and further away from democratizing interventionism since the publication of Democracy and Distrust. Sloss criticizes Rucho v. Common Cause, the most horrendous recent sign of such retreat. But he doesn’t reflect on what such a case and many others teach about why there are no agents for his project.

This lack is a characteristic quandary of reform projects — not just revolutionary ones of the kind Sloss’s subtitle announces. Nor is there anything unfamiliar about Sloss’s utopian solution to this problem, though it’s worth underlining that Sloss just pines his hero judges into existence — creatively adapting Reinhold Niebuhr’s serenity prayer to yearn for judges who will reach the right balance of activity and passivity, guaranteeing fair processes while otherwise deferring to democracy and majority rule. But, especially given scholarship arguing that constitutional theory suffers from an endemic syndrome of wishcasting a judiciary we will never have, it’s worth asking why Sloss believes he can actually get the process-oriented judges we all would want, immediately or permanently.

A great liberal internationalist scholar of foreign relations law, Sloss adds to the eternal return of process theory a desire for a judiciary to come that will also step up for the sake of international human rights. Again, it’s not as if this is a new idea, though it was always conceded to be improbable even when Ely’s proposals were taken seriously. Nor does it matter much that Ely would have found this tweak to his approach galling, given his coruscating skepticism of rights-based adjudication (except for oppressed minorities). The trouble is that it ignores that the judicial implementation of human rights, which American populism never had to target because it never got very far in America, has been absolutely central to right-wing politics in many other places. Consider, for instance, the pushback to the United Kingdom’s Human Rights Act over the years.

True, Sloss favors less Dworkin than Mark Tushnet when it comes to the “weak form” of review for such rights. But Sloss has a Dworkinian confidence that he (or international law?) knows what the right rights are for judicial implementation in the first place. No liberty of contract, of course, but also — Sloss says — no abortion rights because liberals “cannot credibly claim to be the party that supports a democratic attack on judicial power if it purposefully selects Supreme Court justices who are committed to reinstating Roe v. Wade by judicial fiat.” (Ely would have liked this line.) But would judges selected to faithfully download (Sloss’s interpretation of) international human rights law and enforce it feel non-partisan? That seems more than doubtful.

Nor am I convinced that judicial reform should stop where Sloss thinks. Angling for friendly judges who are supposed to adopt Sloss’s two-pronged program is going to have to be enough, Sloss writes. An amendment institutionalizing legislative override of judicial decisions isn’t available, he says. The Supreme Court itself would reject other schemes (such as supermajority rules for its voting), he observes. As a result, Sloss falls into the camp of those limiting themselves to what Ryan Doerfler and I have called “personnel reforms,” however achieved, instead of contemplating more structural institutional change. In hallowed centrist tradition, the revolution of the jurists doesn’t actually reach the institutions, even in its radical phase.

Sloss’s basic conjecture seems to be that liberals can get rowdy once to bring a judiciary they like into existence, and enough people will accept the results that it will become self-perpetuating. No excesses of Earl Warren’s court will occur, so no one — such as the right and far right of the era since Earl Warren’s time — will respond by trying to fight the courts and then taking them over. Meanwhile, all the good process and rights Americans need will come from the deradicalizing centrists draped with black robes, who will supposedly abjure other interventionism.

Presumably, Sloss thinks this dynamic never took hold so far because not enough good justices were ever appointed, and that prior liberals were merely off on a few points about the boundaries of their judicial role, and antagonized the populace and their politicians. That’s one version of history I suppose. A better one says the problem was never that judges exceeded the legal propriety of process and rights that could have stabilized their function. Rather, it’s that courts inevitably do political work, more the more unamendable their constitution is, and more corruptly the more powerful the tools at their disposal. If so, then the poverty of the constitution and the power of the courts are to blame for our history, and both things would have be changed to leap onto a different timeline than the American one so far.

Sloss closes with an account of why his book isn’t utopian, part of which plays on the suggestion that more radical ideas in the court reform debate are the genuinely utopian ones. It’s a good proof of the radical centrist credentials of his project I’d say — radicalism for the sake of familiar ideals that have already failed, and part of the dynamic that led to the dire straits in which they are being dusted off as revolutionary. And it suggests the need to drop the centrist part of radical centrism for reform or revolution to succeed.

Samuel Moyn’s forthcoming book is “Gerontocracy in America: How the Old Are Hoarding Power and Wealth — and What to Do About It.”