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.
In his carefully written chapters, Sloss offers a detailed vision of the philosophy a future judiciary’s members will be encouraged to adopt — or even through “hardball” tactics. The edginess to which Sloss has been driven is, of course, excellent as far as it goes, but I am not as sold on the viability of the two core ideas he hopes the rebooted judiciary will restore — the centrist part that his newfound radicalism aspires to advance. Process theory and human rights have already been offered by theorists as remedies for the higher judiciary for decades, and on inspection Sloss’s institutional radicalism still operates within excessive limits.
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.”