The Shadow Court

An innovative solution to the antidemocratic overreach of the Supreme Court, drawing on lessons from constitutional democracies around the world.

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

Julie C. Suk offers a novel solution to the problems plaguing the Supreme Court: a Shadow Court. All over the world, shadow governments act as watchdogs for representative democracies, and constitutional courts prevent slides into authoritarianism. Suk shows how Congress can build on these modern models and break the Supreme Court's monopoly on constitutional interpretation by creating a Shadow Court that would decide contested constitutional questions in the abstract before the Supreme Court could rule on them in a concrete case. Ambitious but pragmatic, The Shadow Court offers a hopeful and enduring solution for rescuing democracy in the United States.

Julie C. Suk is Leonard F. Manning Professor of Law at Fordham University and a Steven M. Polan Fellow in Constitutional Law and History at the Brennan Center for Justice. She is the author of After Misogyny: How the Law Fails Women and What to Do about It and We the Women: The Unstoppable Mothers of the Equal Rights Amendment.

Contents

Introduction

1. The Crisis of Democracy and the Supreme Court

2. Democratic Institutions of Constitutional Lawmaking

3. Legitimizing Features of the Shadow Court

4. Shadowing Power to Build Power

5. Nationwide Injunctions and Abstract Review

6. Protecting Democracy After Antidemocratic Rule

Epilogue: The Democracy Docket

Acknowledgments

Notes

Selected Bibliography

Index