The Case for a Shadow Court

One dismal morning in January 2001, I strode into a University of Oregon classroom to face 90 fresh-faced first-year law students. I had the unenviable task of explaining the “law” behind Bush v. Gore, decided a month earlier.  

It was an impossible task.  

What could I say to these legal novices, beyond “It is not too late to reconsider the life choices that brought you here”? There was no explanation for Bush v. Gore other than the obvious: The Supreme Court took the election away from the people because five of its members didn’t like Al Gore. No decision in my lifetime has shown such contempt for the law or so consciously torn a catastrophic hole in the self-governing institutions the Constitution supposedly aims to sustain.  

Even today, a quarter-century after the Court’s worst blunder since Dred Scott, no explanation fits the ruling into the fabric of American constitutional law. Instead, lawyers, scholars, and judges have treated this travesty as a human body treats a foreign object trapped in a wound. It is not incorporated but encysted: surrounded by protective tissue that limits the damage and pain. Constitutional law basically passes over this crucial decision by refusing to talk about it. 

Back in 2001 I would have welcomed the chance to offer my students a careful, clear explanation, written by credible constitutional lawyers, of exactly what was bogus about the decision—not because Gore should have won but because, by stepping in to stop a state-court recount on the flimsiest of grounds, the Court was doing something it had no business doing. Yet when a useful rebuttal was most needed, no one stood forth with one. As a result, the Court that flowed out of the case has largely paid no price in authority or prestige.  

The Shadow Court: Rescuing Democracy
from the Supreme Court by Julie C. Suk.
University of California Press, 312 pp. 

In The Shadow Court, Fordham University Law Professor Julie C. Suk offers a mechanism that (in my fond imagination) could have filled this vacuum—and could fill others if they arise. Her proposal has many virtues: It is entirely legal, requires no amendment to the Constitution, and might very well help rebuild the national commitment to democratic self-government that has been undermined since Bush v. Gore.  

But before we get to her solution, let’s begin with the problem(s): Generations of American constitutional law students have been taught that the United States “invented” the practice of binding judicial review—that is, the power of an independent judiciary to invalidate laws that, in its judgment, conflict with the principles of the Constitution. This innovation, we proudly proclaim, has been adopted by democratic countries around the world, including most of the European Union and newer democracies like South Africa and Romania. 

As Suk points out, this claim is true but incomplete. Most countries that have adopted judicial review would say, if asked about our system, that we are doing it wrong.  

American courts, Suk notes, review statutes in a self-aggrandizing, arbitrary, and unpredictable way. In effect, federal courts increasingly function not as parts of a system of democratic self-government but as an external body operating on its own timetables, with its own ideas of law, and its own whims. This Court is much more akin (this is my comparison, not Suk’s) to the Islamic Guardian Council of Iraq than to the constitutional courts of modern European democracies. 

To begin with, our system is one of “diffuse judicial review.” A determined rogue judge can strike down federal laws at whim; indeed, Chief Judge Reed O’Connor of the Northern District of Texas has struck down key parts of the Affordable Care Act twice, returning to the fray after a first rebuke by the Supreme Court. In most advanced democracies, judicial review is centralized—exercised by one or only a few specialized tribunals of judges specifically selected for their constitutional expertise. Members of such a tribunal serve limited terms, are selected for their records as constitutional thinkers, and hear only constitutional cases. 

Second, our version of judicial review has no clear timetable. In many modern systems, a constitutional challenge to a statute must be brought within a certain window of time after its enactment. In ours, federal judges can roam the United States Code at will, shooting down laws long after they have become part of the legal system. This feature—call it “temporal instability”—renders American constitutional law vulnerable to sudden changes in legal fashion and perhaps (let’s say it softly) partisan shifts.  

For example, the Federal False Claims Act, passed during the Abraham Lincoln administration and repeatedly strengthened in the past half-century, permits whistleblowers to bring a fraud lawsuit in the government’s name—and share in the eventual recovery. In Fiscal Year 2025, false claims suits produced $6.8 billion in settlements and recoveries, many of them originated by whistleblowers on behalf of the government.  

Not long ago, however, Justice Clarence Thomas announced that “[t]here are substantial arguments that the [whistleblower plaintiff device] is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation.” Hey presto! District Judge Kathryn Kimball Mizelle of the Middle District of Florida struck down the Act. (That she is a former Thomas clerk is surely coincidental; so, too, is the fact that whistleblower lawsuits have become a target of the corporate-funded conservative legal movement.)  

Finally, there is the question of “abstract review.” When should a federal court weigh in on constitutionality? American courts have evolved a body of law that, judges say, guarantees that they will only hear “cases and controversies.” But they steer clear of many genuine “controversies” when their views would help, and often thrust them in at times that can cause chaos. Consider the Line Item Veto Act, passed in 1996 by a bipartisan vote of Congress. The act gave the president the authority to veto specific appropriations within a budget authorization statute.  

The drafters recognized that uncertainty over budget matters might prove problematic; thus, to keep a challenge short and definite, they provided that “any member of Congress” could challenge it. Six members immediately did that, in a case called Raines v. Byrd. They argued that the act would dilute their power, granted under Article I, to legislate federal budgets. 

The United States Supreme Court dismissed their case—not because the law was constitutional, but because, the Court said, dilution of power was not a “particularized injury.” The majority explained its reticence as an act of self-restraint: “We must put aside the natural urge to proceed directly to the merits of this important dispute and to ‘settle’ it for the sake of convenience and efficiency.”  

Or, as the Magic 8-Ball would say, “Ask again later.” 

And almost exactly a year later, in Clinton v. City of New York, the very same nine justices held, 6-3, that the act in fact was invalid for the same reasons advanced in Raines v. Byrd. No facts or legal doctrines had changed; because of the “standing” doctrine, an entire year of federal budgetary practice had been needlessly placed in legal doubt.  

Many foreign systems—and 11 American states—avoid this kind of absurdity by allowing for “advisory opinions” at various stages of the legislative process. In those jurisdictions, specific parties, usually including the legislative minority, can request an advisory opinion before or immediately after the passage of a law.  

(Having covered the Obamacare cases as a Supreme Court correspondent for The American Prospect and The Atlantic, I think the country would have been much better off if we had avoided the two years of drama and chaos between the enactment of the Affordable Care Act in March 2010 and the Court’s decision upholding it in June 2012. Would it have been so terrible if Congress or the president could have asked about the “individual mandate” before risking the nation’s health care system on this untried mechanism?) 

Finally, the Supreme Court today is ill-designed to be what historian Stuart Banner recently called “the most powerful court in the world.” At no point does the Constitution’s text explicitly endow any court with the power to set aside federal statutes. The Court seized that power in 1803 and has systematically expanded it to the extent that, today, the federal government can’t undertake any important action if five members of the Court don’t think it’s a good idea. And once that five-vote majority has spoken, Congress and the public have no recourse.  

The federal courts have too much power; too many federal judges exercise it; and the Court’s claim of supremacy in constitutional interpretation ill suits a democratic system. Should some federal court or courts have the power of judicial review? You betcha. Should that power belong to the current holders? Should it be done the way our courts do it? Not so much.  

This brings us to Suk’s proposal, which I think is splendid. No constitutional amendment is needed; We the people, she suggests, could fashion a democratic weapon to strike back at the Court’s pretensions to ownership of the interpretive process.  

The current rules of the federal bench—appointment by the President, confirmation by the Senate, life tenure thereafter—are certainly out of reach, as is any remedy requiring a constitutional amendment. Instead, Suk imagines an institution Congress could create (without the Court’s approval): a “shadow court” that could speak with democratic legitimacy to both the Article III courts and the nation as a whole.  

The term “shadow court” comes from the parliamentary system. In many parliamentary countries, the opposition appoints a “shadow cabinet” from among elected members. Each “shadow minister” has specialized knowledge to critique policy in areas like defense, foreign affairs, and finance. When the government makes a decision, shadow ministers can respond quickly, offering the public an alternative vision. The institution is thoroughly democratic; it can focus and enrich public debate, while helping to block a government’s natural tendency to dominate public discourse and ignore criticism.  

Now, Suk suggests,  

Imagine a body of nine Shadow Justices who hear arguments on the same constitutional controversies [as the actual Supreme Court] and publish judicial opinions that are thoroughly reasoned, without actual legal power to order judicial remedies that bind the parties or any lower courts. Shadow Justices could freely develop persuasive lines of constitutional reasoning with the political branches and the people as their audience. 

The “shadow justices” would serve limited terms (doing away with what we might call “the Clarence Thomas problem”). They might be appointed by the president and confirmed by the House of Representatives—a far more democratic body than the Senate—or “by the state and/or [lower] federal judiciaries or confirmed by both houses of Congress.” Congress by statute could require the selection to be made from among a list provided by “a democratically accountable body.” The statute could require the “shadow justices” to be lawyers with demonstrated qualifications in constitutional law and litigation (doing away with what we might also call “the Clarence Thomas problem”). She suggests that “an additional court that is composed more democratically will make constitutional law more legitimately.”  

“Make,” of course, is not the precise word, since the shadow court’s entire political strength would be that it would not exercise any legal power. Its only mechanism of action would be its opinions—opinions that, if issued by a properly constituted “court,” would raise constitutional questions and issues that the present-day Court allows itself the imperial luxury of ignoring.  

This idea may seem inconsequential—after all, what we really need is to expand the Court, or impose term limits, or strip its jurisdiction, or reform it in other ways. Some of the most brilliant scholars working today are striving to find avenues for court reform.  

Each of us can assess the likelihood of any formal change to the Court itself, and any such change might face the obstacle of the present Court itself, which is ferocious in protecting itself, delegitimizing critics, and disempowering Congress. But for a conservative majority to strike down a shadow court would be a usurpation that might embarrass even Sam Alito, akin to striking down the Congressional Research Service because it might criticize the Court.  

In one sense, or course, a shadow court would change nothing; as far as overruling monstrosities like Dobbs v. Jackson Women’s Health Organization and Trump v. United States, it would have no formal authority. But the Constitution itself has authority only because it is persuasive, and that at its best constitutional law is and should be a sustained argument about the meaning of democratic self-government. A “court” that offers a reasoned critique of the current Court might, over time, enrich this dialogue and force some moderation on the wretched hacks who now infest its shadowy lair.  

As I read about Suk’s imagined court, I thought about the horror that is Bush v. Gore. What if a shadow court could have responded to that monstrosity? What if I could have taught my students that some important constitutional figures thought it bosh? One shadow opinion, published promptly in the wake of the 2002 disaster, might have pushed the real Court, over time, to offer a genuine explanation, or maybe even re-think its own role.  

There might be a temptation to begin to breathe easier in the wake of the Court’s September 14 decision to allow states to conduct mail voting without interference by the administration. But note that we don’t know the basis of the Court’s decision, what the vote lineup was, or even how this Court will decide this precise issue when it decides to hear it as a regular-docket case. The issue is still out there for decision in the next term; a shadow court might be a good antidote to a shadow docket. If even the nation needed a solid advisory opinion, it could have used one as this case was pending; and since the issue will come up again, it could still use one. 

Perhaps this is wishful thinking. Perhaps the entire constitutional project has now been so thoroughly shredded that the hopes of a Julie Suk (or a Garrett Epps) are fit only as subjects of ridicule. But between conceding to collapse and clinging to hope for reform, I don’t have much trouble choosing. 

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