The Shadow Court

35 Pages Posted: 11 Oct 2023 Last revised: 8 Feb 2024

See all articles by Julie C. Suk

Julie C. Suk

Fordham University School of Law

Date Written: September 21, 2023

Abstract

Criticism of the Supreme Court’s legitimacy has surged in recent years because of partisan polarization over its composition and bold rightward shift, which has generated proposals to expand the Court. This Essay proposes a novel solution to the problems that have brought about the Court reform debate. Instead of expanding the Court, Congress can create a brand new institution to target judicial supremacy—the Shadow Court. Inspired by shadow cabinets and constitutional courts in constitutional democracies around the world, the Shadow Court would provide a political counterweight to the Supreme Court’s growing power. The Shadow Court would hear and decide the same cases and constitutional issues as the Supreme Court, but without the power to issue binding legal orders. The Shadow Justices would have term limits and be appointed and confirmed by a wider swath of politically accountable actors beyond the President and the Senate. The Shadow Court would provide Congress and the people with an organized alternative constitutional jurisprudence that would derive its legitimacy from its ability to educate and persuade. Just as the organized loyal opposition provided by shadow cabinets improve the functioning of parliamentary democracy, the Shadow Court can improve the functioning of our currently juristocratic democracy. This Essay defends the constitutionality of Congress’s power to create the Shadow Court, and shows why it is a more viable, effective, and durable path than expanding or otherwise reforming the Supreme Court.

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

Suggested Citation

Suk, Julie C., The Shadow Court (September 21, 2023). Fordham Law Legal Studies Research Paper No. 4579297, Available at SSRN: https://ssrn.com/abstract=4579297 or http://dx.doi.org/10.2139/ssrn.4579297

Julie C. Suk (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

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