What happens when the Supreme Court gets too powerful and stops listening to We the People?

When Abraham Lincoln delivered his inaugural presidential address in 1861, he issued a warning about a Supreme Court that usurps the power of the elected branches to become the ultimate authority in a representative democracy.

“If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court … the people will have ceased to be their own rulers,” he said. Today, Lincoln’s foreboding words feel just as pressing as they did 164 years ago. At least David Sloss, the John A. and Elizabeth H. Sutro Professor of Law at Santa Clara University, thinks so.

In his new book, People V.  The Court: The Next Revolution in Constitutional Law, Sloss explores the history of the judicial branch accumulating more and more power at the expense of state and federal legislative bodies. He argues that the reality of the United States government today is at odds with popular sovereignty, a central concept of our Constitution. In short: “We the People” are supposed to tell the government what to do, not the other way around.

Using a car metaphor, Sloss says the notion of popular sovereignty has been subverted. Today, the U.S. Supreme Court is the driver, our elected legislators are lucky to be occasional backseat drivers, and We the People are like babies in car seats, with no say in where we’re going or the route we take to get there.

It’s a bit of a bleak picture, to be sure, but Sloss maintains that he’s still hopeful about the future of our democracy. He sat down with Santa Clara Magazine to discuss the concepts laid out in his book and his ideas for affecting change.

The following has been edited for length and clarity.

Santa Clara Magazine: As a constitutional law expert who’s worked within the federal government and written extensively on U.S. constitutional history and the various issues our nation faces, what were you seeing happening in and around the Supreme Court that concerned you enough to write a book about it?

David Sloss: For about the past 10 years, I’ve been worrying about the decline of democracy both in the United States and around the world. You can look at it in terms of creeping autocracy, or you can look at it in terms of democratic decay. Those are opposite sides of the same coin. I’d been reading a lot of the broader literature about these issues, but I thought something was missing. I wanted to focus on how the U.S. Supreme Court has contributed to the process of democratic decay, looking at it through the lens of how the Court’s constitutional jurisprudence is making the problem worse rather than better.

SCM: The book presents an indictment of the Supreme Court’s constitutional doctrine—or the way it interprets the Constitution to guide legal decisions. You helpfully break this down into structural issues and rights issues. Can you explain the difference for us non-lawyers?

Sloss: I’m not the one doing that dividing, that’s the way it’s taught in law schools throughout the United States. In the Supreme Court’s doctrine, structural issues are about how the Constitution divides power between and among different government actors. The other element is about individual rights, which is probably what most people think about when they think about the Constitution. Basically, these are provisions in the Bill of Rights: free speech, freedom of religion, freedom from cruel and unusual punishment, and so on.

This division between structure and rights mirrors the way the Supreme Court tends to treat constitutional issues. My basic critique is that this way of thinking about the Constitution misses something really important. The Constitution is designed to ensure that We the People maintain effective control over our government. That’s the core principle of democratic self-government—the citizens govern ourselves through our elected representatives. And yet, when you look at the Court’s constitutional doctrine, that idea is largely absent. The Court’s structural constitutional doctrine focuses exclusively on the division of power among government actors; it ignores the Constitution’s division of power between the government and the people.

If you look at this more in terms of rights, , the Court’s  constitutional doctrine is all about negative individual rights, rather than affirmative collective rights. The distinction is that negative rights restrict what the government can do to us, whereas affirmative rights are about what we can do to exercise control over the government. The core idea of democratic self-government is that We the People have an affirmative, collective right to maintain a certain degree of control over the government. But again, that idea is missing from the Court’s rights doctrines.

SCM: Is this something that’s been manufactured within the Court over time or just the way that history has unfolded?

Sloss: Earl Warren served as Chief Justice from 1954 to 1968. I think that was a time when the Court began to articulate a real constitutional doctrine of democratic self-government, where the Court saw it as an important part of its mission to strengthen the ability of We the People to act collectively to maintain effective control over our government.

But when Richard Nixon was elected in 1968, a big part of his platform for the presidency was to appoint conservative Justices who were going to reverse what he saw as the worst excesses of the Warren Court. When Nixon was president, he appointed four new justices. Then, during the 1970s, as the Court moved further to the right, the basic idea that one of the Court’s primary missions is to promote and strengthen democratic self-governance got lost. I don’t think it was a purposeful, deliberate turn against that idea, but the Court was focused on other things and going in other directions.

SCM: What’s an example of a Supreme Court case in which power was taken away from “We the People” to self-govern through our elected representatives?

Sloss: I like to give two examples because they cut in opposite directions politically—one is gun rights (McDonald v. City of Chicago) and one is gay marriage (Obergefell v. Hodges). In the first, the settled constitutional understanding for 200 years was that states have very broad freedom to adopt whatever gun control regulations they want. But in 2010, the Supreme Court announced that the Second Amendment is binding on state governments. In that declaration, the Court effectively said, “We’re no longer going to let the people in individual states, through their state legislatures, make their own gun policies.”

If We the People don’t like what our state legislature has decided, we can “vote the rascals out” and replace them with different people. But when the Supreme Court claims for itself the power to be the final decision maker on such matters, we can’t vote the justices out of office.

The other example: For most of U.S. history, marriage and family law has been controlled by the states. In 2015, the Supreme Court ruled that there’s a constitutional right to gay marriage. Liberals were very happy, conservatives were very upset. What you have in common with these two cases is the Court stepping in and limiting the range of choices available to state legislatures and, therefore, indirectly taking power away from the people.

If We the People don’t like what our state legislature has decided, we can “vote the rascals out” and replace them with different people. But when the Supreme Court claims for itself the power to be the final decision maker on such matters, we can’t vote the justices out of office.

SCM: Are there not certain instances or topics where we can say that there’s nationwide popular consensus that something should become federal law rather than being left up to the states?

Sloss: Well, I would have no problem with Congress, say, passing gun control regulations that are binding on the states. Or Congress enacting a national right to gay marriage. Because Congress is also accountable to the people. But instead, decisions are being made by judges who are not accountable to the people.

What’s happened over the past 30 years is the Court has put limits on Congress’s power to enact federal statutes that—at least from the standpoint of the conservative justices—are and should be the realm of state law. The Court says it’s returning power to the states and taking it away from the federal government. But that’s not really what’s happening. What’s really happening is that the justices are  taking power away from Congress and giving it to themselves.

SCM: This is in line with your contention that elected officials who are supposed to represent the will of their constituents actually have very little power to accomplish major reforms.

Sloss: In theory, legislatures are responsive to the will of the people but in practice, they’re not. Look at the issue of partisan gerrymandering, where state legislatures dominated by Republicans draw electoral lines to privilege Republicans over Democrats. And state legislatures dominated by Democrats do the opposite. This has been making news lately because Texas is gerrymandering and now California voters are being asked to approve a measure that would gerrymander California to balance out the Texas districts in Congress. What’s happening is politicians saying to voters, “You don’t matter. What matters is the parties, not the voters.”

SCM: In your opinion, are the issues you lay out about the Supreme Court reaching a crescendo?

Sloss: First, I would refer back to a different period in constitutional history—the Lochner era, from the 1890s until the middle of the 1930s. That period had a very conservative Supreme Court which was handing down constitutional rulings that thwarted the will of democratically elected legislatures. When Franklin Roosevelt was elected in 1932, he and a Democratic majority in Congress started passing progressive laws to get us out of the Great Depression. Meanwhile, the Supreme Court was repeatedly striking down laws that were central to Roosevelt’s New Deal program. So, Roosevelt threatened to pack the Court. He came up with a legislative proposal to expand the number of justices from nine to 15, so that he could get a Democratic majority on the court who would uphold his legislation. That led to a major confrontation between the Supreme Court and the president. In the end, the Court  backed down and, over the course of a couple of terms, the justices began to approve some of Roosevelt’s major legislation. By 1941, the composition of the Court had changed dramatically and it was  on board with the New Deal program.

I think the Supreme Court is probably more powerful today than it has ever been in the history of this country. But I still could see something like that happening again. I think what it would take is a Democratic president, backed up by Democratic majorities in both houses of Congress, and the ability of the Democratic Party to maintain that majority through more than one electoral cycle. That probably seems outlandish right now but it could happen. I think the next Democratic president we get, there is going to be a confrontation between the Court and the president. And how that plays out, I don’t know.

SCM: You contend the Supreme Court could be part of the solution but putting the people back at the center of the constitutional universe would require significant change.

Sloss: To be part of the solution, we need new justices. There have been different proposals floating around for a while on how to change the way we appoint Supreme Court justices. In the final chapter of my book, I lay out a plan. Basically, each president in a four-year term gets to appoint two new justices. Without getting into too much detail, essentially, this statutory design would be such that the most contentious cases would be heard by the nine most recently appointed justices. More senior justices would not be forced to retire because justices get life tenure under the Constitution. Instead, justices would get senior status so they could still participate in some cases. In my opinion, this would start moving the Court away from being such a partisan institution and toward a more neutral institution.

SCM: You write that despite the continued crumbling of democratic self-governance, you believe the U.S. still has the capacity to spread freedom, democracy, and human rights globally. What keeps you hopeful?

Sloss: Things look pretty bad right now, and I think there’s a serious risk that we’re looking at the end of liberal democracy in the United States. However, I also believe that liberal democracy is deeply rooted in American political culture. And there is not anywhere close to majority support in this country for transforming our democratic republic into a dictatorship.

There’s a quote attributed to Winston Churchill—“I’m an optimist because I have to be.” I think the idea there is, I have a choice between hope and despair. And it’s certainly a lot better for me to choose hope than despair. So I’m going to stick with hope.

Related: Read SCM’s 2022 article on David Sloss’s book, Tyrants on Twitter, about the effects of digital misinformation on democracy.