The Shadow Court: Rescuing Democracy from the Supreme Court; Introduction

Abstract

For the foreseeable future, America is stuck with a Supreme Court plagued by a crisis of legitimacy. Beyond expanding presidential power, dismantling voting rights, and protecting other forms of antidemocratic government, the court continues to dominate constitutional lawmaking on contested policy issues, usurping lawmaking power that should belong to the people and their elected representatives in a constitutional democracy. 

The Shadow Court is a novel solution to the problems plaguing the Supreme Court. All over the world, shadow governments act as watchdogs for representative democracies, and constitutional courts prevent power grabs in democracies that overcame their past slides into authoritarianism. Suk shows how Congress can build on these modern models by creating a shadow court that would interpret the Constitution, one step ahead of the Supreme Court. The shadow court, designed to be responsive to the values and sentiments of the people, would break the Supreme Court’s monopoly on constitutional interpretation by deciding contested constitutional questions in the abstract, before the Supreme Court could rule on them in a concrete case. The shadow court would provide voters with a concrete picture of what constitutional law could become if only the people could wrest control over America’s constitutional future away from the Supreme Court. Openness to institutional innovation and reform through shadow institutions may offer the only hope for rescuing democracy in the United States.

Keywords: Supreme Court reform, judicial review, constitutional theory, institutional design