The Court vs. Democracy
An interview with Julie C. Suk, author of the forthcoming book The Shadow Court, on the Supreme Court’s recent decisions and the kind of reforms that would be needed to democratize the judiciary.
In our summer issue, Dissent co-editor Patrick Iber spoke with political scientist David Bateman and legal scholar Julie C. Suk about the dysfunction and degradation of American constitutional government. After the end of the most recent Supreme Court term, I spoke again with Suk, author of the forthcoming book The Shadow Court: Rescuing Democracy from the Supreme Court, about the Roberts Court’s major decisions this year—on voting rights, executive power, birthright citizenship, and more—and the kind of reforms that would be needed to democratize the judiciary.
Nick Serpe: A major theme of your work is the undemocratic nature of the Supreme Court, both in terms of how it is structured and the substance of its decisions. So let’s start with Louisiana v. Callais. The Court has made a number of interventions on voting rights in recent years. How significant was this case in that longer trajectory?
Julie C. Suk: The Voting Rights Act prohibits racial discrimination, and in order to comply with it, some states, like Louisiana, have redrawn district lines in a way that’s conscious of disenfranchised groups, especially black voters who were deliberately disenfranchised by many states in the past. Louisiana v. Callais says that now states can’t race-consciously empower previously disfranchised voters. Why? Because the Court is saying that race-conscious redistricting would be what they call racial gerrymandering. They’re saying that would violate the Equal Protection Clause of the Fourteenth Amendment, following the Court’s affirmative action case from 2023.
The decision reads the Voting Rights Act super narrowly, to make it fit the Court’s colorblind vision of constitutional equality. So the Court is prohibiting states from doing what’s necessary to make voting fair for racial minorities. The Voting Rights Act is toothless, because it no longer authorizes state legislatures to be proactive in addressing the far-reaching effects of generations of race discrimination in voting.
While making these huge interventions, the Supreme Court has also refused to intervene against serious threats to representative democracy. In a 2019 case, Rucho v. Common Cause, the Court said that partisan gerrymandering is a political question that it could not adjudicate. So it leaves extreme partisan power grabs intact, while striking down efforts to protect Black voters as unconstitutional “racial” gerrymandering in Louisiana v. Callais.
On the one hand, the Court is giving free rein to political parties to entrench their power forever through partisan gerrymandering by saying that’s not the kind of problem the judiciary intervenes in, but then the judiciary is being incredibly activist in stopping state legislatures from doing anything to secure racial minorities’ voting rights. It’s OK for people who have power to entrench their power, and it’s not OK for people to undo past power imbalances based on race. So Callais is the decision this term that I see as most damaging to a fair political process in a democracy.
Serpe: So how much is left of the Voting Rights Act? You said that it feels like a very weak piece of legislation because of the way that the Court had shaped it.
Suk: The narrow reading of the law in Callais builds on what the Supreme Court did in Shelby County v. Holder over ten years ago. In that case, the Court basically got rid of the preclearance requirement of the Voting Rights Act. Before that decision, certain places had to get permission from the district court before making changes to voting and electoral systems, including redistricting. The law determined which counties or localities were required to get “preclearance” based on which jurisdictions had been discriminating on voting rights in the past. In Shelby County, the Court said that race discrimination is just so far back in the past that it no longer makes sense to rely on a 1960s account of which (mostly Southern) counties were discriminating against Black voters. The Court was basically saying that the 1960s version of the Voting Rights Act was obsolete, and now the Court is saying that using the Voting Rights Act to protect Black voters is discrimination against white voters, and out of line with the Roberts Court’s understanding of the Equal Protection Clause.
At the same time, since the Roberts Court interprets the Constitution to allow even the most extreme forms of partisan gerrymandering, the disparate effects on Black or Latino voters are left unchecked. With Callais, the Court now says that trying to avoid racial disadvantage in our electoral system is unconstitutional, as it violates Equal Protection. So it really raises a deep and urgent question about whether the Constitution we have allows the people to make our democracy fairer or more representative. Part of the Shelby County decision was that Congress—which does have the power to regulate at least its own elections—does not have the power to take robust measures in exercising its Fourteenth and Fifteenth Amendment powers to enforce racial equality. The Court held that when Congress passes voting rights laws, it must stay within the bounds of the Court’s own narrow colorblind definition of Equal Protection.
Serpe: So this is not just a case of the Court legislating in place of congressional inaction, but actively constricting what Congress is able to do.
Suk: Right. It is true that in Rucho v. Common Cause, the Court recognized that Congress has the power to regulate partisan gerrymandering, because it has the power to regulate congressional elections. But at the same time, Congress’s power to enforce Equal Protection is limited to remedying what the Court recognizes as racial discrimination. This means that Congress can’t go all out in trying to overcome the racially disparate effects of partisan gerrymandering, for instance.
Serpe: Let’s turn to executive power. This term we saw Trump v. Slaughter extend presidential firing power over the heads of agencies. (There’s a carveout from another case for the Federal Reserve, which we can maybe talk about as well.) I’m curious how you read this decision in terms of the Court’s relationship to the Trump presidency, in addition to broader conservative movement goals.
Suk: The opening paragraphs of Trump v. Slaughter provide a full-throated defense of the unitary executive theory as the self-evident reading of Article II of the Constitution. The majority of the Justices believe that the person who’s the head of the executive branch must have this extremely broad power to fire almost anyone who executes the laws. They’re presenting this not just as a policy decision—they think the government works better if only one person has this discretion—but as a truth that emanates logically from the text creating only one president, in whom the Constitution “vested” this enormous responsibility to “take care that the laws be faithfully executed.” To this Court, the Take Care Clause and the oneness of the presidency can only mean that the president has the exclusive power to remove executive branch officials, including those in the Federal Trade Commission. Congress acts unconstitutionally, according to the Court, when it tries to limit the president’s removal power with just-cause protections. That’s a consolidation of the political theory that the Court was moving toward in cases involving presidential power for many years, so I didn’t find Trump v. Slaughter that surprising.
Serpe: Let’s talk about a case where Trump didn’t get his way, in Trump v. Barbara. There’s been a lot of discussion about this case on birthright citizenship—not just about the decision, but about the way it was decided, and the fact that the case was heard in the first place.
Suk: Unfortunately, the Fourteenth Amendment doesn’t say everybody who’s born on U.S. soil is a U.S. citizen, period. The text includes these mysterious words, “subject to the jurisdiction thereof.” A word like jurisdiction means different things in different legal contexts, so it sows disagreement over whether any given child born on U.S. soil is also “subject to the jurisdiction” of the United States and therefore a birthright citizen. Children of emancipated slaves unquestionably were, but what about children of Chinese people who were ineligible to become U.S. citizens through naturalization? Some of this was settled at the end of the nineteenth century in the United States v. Wong Kim Ark case, in which the Court included the child of Chinese migrants in birthright citizenship, despite the laws of Chinese exclusion. The Court recognized two exceptions: if someone came to the United States as part of an invading army and had children here, and if a diplomat had a child. The majority in Trump v. Barbara reaffirmed that longstanding understanding that unlike diplomats and enemy invaders, foreigners who can be lawfully excluded from the United States and are subjects of another sovereign are nonetheless “subject to the jurisdiction” of the United States because they have a duty to obey our laws.
But the dissenting justices tried to build on the Court’s decision from last year on Trump’s birthright citizenship order. Last year, in Trump v. CASA, the Court invalidated the nationwide injunction. The thinking behind that decision was that courts should not strike down the executive order for every conceivable situation across the entire nation to which it could apply. Now, the dissenting justices in Barbara are saying that if you could imagine one situation in which a person is born on U.S. soil but would not be entitled to birthright citizenship, there’s no real reason to hold on to the Wong Kim Ark reading of “subject to the jurisdiction thereof.” Justice Alito says “subject to the jurisdiction” should mean really owing allegiance to a country, not just a duty to obey the laws—and so he thinks the constitutional text allows the exclusion of babies of parents who are unlawfully present in the country, which Trump did in that executive order. From Alito’s perspective, it’s wrong to read the Constitution as protecting “birth tourism” as a Fourteenth Amendment right.
I think the journey from last year’s nationwide injunction decision in the birthright citizenship case to this year’s decision actually invalidating Trump’s order highlights something important about the role of the courts in stopping flagrant violations of the Constitution. As soon as Trump issued his executive order, there were lawsuits brought by immigrant organizations and some states to challenge the order’s constitutionality. District courts immediately invalidated the executive order as a straightforward and flagrant constitutional violation. But the Supreme Court said you couldn’t have a nationwide injunction in a case brought by a few states and immigration organizations, that a court only had the power to issue remedies applicable only to the litigants, and said nothing at that time about whether the birthright citizenship order was unconstitutional, effectively allowing it to go into effect nationwide. We live under a constitutional system in which a president can do a lot of things that could be flagrantly unconstitutional, but no court has the power to stop them from going into effect for the whole country immediately in every imaginable application.
So other litigants jumped in; Trump v. Barbara is a class action lawsuit that purports to represent everyone nationwide to whom the executive order would apply, which made it possible, over a year after the executive order went into effect, for the Supreme Court to decide the constitutional issue universally. Justice Gorsuch says in his brief dissent that this lawsuit shouldn’t be used to strike down the executive order as a constitutional matter in every imaginable instance. So the Court’s birthright citizenship cases show how awkward it is for the judiciary to strike down a presidential act that is unconstitutional in most instances.
Every constitutional democracy should have a bulwark against constitutional abuse, but is the U.S. Supreme Court a well-designed institution for that job? Constitutional courts in other countries tend to be term-limited and designed to be a little bit more democratically representative. They have the power of abstract review, to strike down laws a priori, before they go into effect, for everyone. But the U.S. Supreme Court, like all federal courts, is only authorized by the Constitution to decide specific cases or controversies. Barbara might be an example of the majority deciding a constitutional issue in democracy-protective way this time, but the decision is one year too late and not sufficient to protect our nation of immigrants. Why should we entrust these justices to make nationwide constitutional rules for all conceivable applications in the future? Even Justice Kavanaugh, who voted with the majority this time, says that he thinks it’s constitutional for Congress to enact a statute that would basically say the same thing that Trump said in his executive order.
Serpe: Looking back on this term as somebody who’s been studying the Court for quite a while, were there things that surprised you or that were unexpected, in terms of cases picked up or decisions made?
Suk: The outcomes of these cases weren’t surprising to me. At the same time, Chief Justice Roberts’ loud and proud embrace of the unitary executive in the Slaughter case surprised me a little—like, wow, they’re really just saying that. I think it’s good when the majority articulates a full-throated defense of a constitutional rule that is at odds with democracy because it shows the people that the Constitution they venerate may not deliver the democracy we think we are. Another moment like this was Trump v. United States two years ago, on Trump’s immunity from criminal prosecution, in which the Court said that the founders really wanted a robust executive who would not be afraid to do all kinds of bold things that might be abusive or criminal. It’s good to know that the well-educated justices are getting to their antidemocratic outcomes by reading the same Constitution that Americans venerate, and I don’t think the Court’s understanding of the Constitution is flagrantly wrong or unreasonable. The Constitution is very old, it was written by a bunch of people who couldn’t understand what the nation has now become, even though they tried to keep the language short and capacious with an eye to future flexibility.
When people read what the Court is saying, they should think, “If I want constitutional law to be different, if I disagree with the Court’s vision of this country or its vision of presidential power, then it’s not unpatriotic for me to work toward something better, even if it is a different Constitution.” Maybe the Supreme Court’s opinions will make people realize that they really want different institutions: A Supreme Court with less power, a president more fearful of the criminal law, a Congress that actually makes laws desired by the people, an electoral system where the people directly vote for the president, a court that’s obligated to curb partisan gerrymandering and other power grabs, and so on. If we really want to preserve democracy in this country, the electorate needs to be motivated not just to put different people into office, but to think in a long-term way about modernizing our institutions.
Serpe: In your interview with David Bateman and Patrick Iber in our summer issue, you talked a lot about the different forms that these reforms could take, including the idea of a “shadow court,” which you take up in your forthcoming book. One of the questions is about public opinion, or how much appetite the public has for this kind of reform politics around the Court. Do you think, because of this brazenness, and the mood of the Democratic Party right now, that things are shifting?
Suk: I think that the problem is that you see some brazenness in the Court’s defense of executive power in Slaughter, you see the Court saying partisan gerrymandering is fine but redistricting to empower racial minorities is racial gerrymandering and not allowed. But at the same time the Court is doing other things that provide a distraction. Birthright citizenship is an example. Liberals and progressives will be relieved by the Court’s decision on birthright citizenship. You also mentioned at the beginning that the Court did not greenlight Trump’s effort to remove the Federal Reserve governor. The Court gets some things right, and sometimes that puts Democrats (and democrats) at ease.
You can imagine a world in the near future where the dissenting justices’ position in Trump v. Barbara becomes a litmus test for future conservative judicial nominees, both on the lower courts and to the Supreme Court. People are making the analogy to Roe v. Wade, where the supporters of abortion rights rested on their laurels and thought that abortion access was secure in America, whereas the pro-life movement got mobilized and the Republican Party made reversing Roe a litmus test for any judge they were going to confirm to the Court. And then they got their victory with Dobbs in 2022.
There were some decisions this term, albeit split ones, in which some liberals or Democrats might say, “Well, it wasn’t so bad.” But I think that’s a distraction from the larger problem, which is that the Court is interpreting a text that’s very old, doesn’t definitively answer a lot of the most important questions that we need to answer to save our democracy. The justices are selective about what they’re going to enforce and what they’re not going to enforce. They’ve made interpretive choices that are reasonably supported by the text and history but are not the best choices for a modern multiracial representative democracy. People who are really committed to making America a modern multiracial representative democracy should not be distracted by the bones that the Court occasionally throws them. Overall, the decisions of this term should motivate such people to think through what kind of institutions we need in the long term for representative democracy to work.
Julie C. Suk is a professor of law at Fordham University School of Law, where she teaches constitutional law and civil procedure. Her research focuses on constitutional amendment and reform. She is the author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment, After Misogyny: How the Law Fails Women and What to Do about It, and The Shadow Court: Rescuing Democracy from the Supreme Court (forthcoming September 2026).
Nick Serpe is a Dissent senior editor.