A Way To Return The Constitution To The People

“Recent rulings have heightened concerns that the U.S. Supreme Court is too powerful — and unaccountable in a way that harms its legitimacy.” Having citizens’ assemblies review Supreme Court decisions could restore faith in the system.

Robert Lempert in Noema Magazine: A well-functioning democracy requires strong, independent and legitimate federal courts. But recent rulings have heightened concerns that the U.S. Supreme Court is too powerful — and unaccountable in a way that harms its legitimacy. The ability to interpret the Constitution without any legal or institutional constraints grants nine individuals significant control over American life, perhaps more than any small group of unelected people ought to have. At present, the only recourse to exercises of perceived arbitrary power by the Supreme Court is a constitutional amendment — which requires ratification by three-quarters of the states — or for the political system to weaken, delegitimize or ignore the court, which is dangerous to the rule of law.

The Constitution provides the organizing framework for American’s political life — but the document needs to be interpreted, and the Constitution itself does not specify who has the final say in what it means. Since the beginning of the Republic, Americans have debated where the power of interpretation ought to lie. But over the years, we have settled on a system that invests extraordinary power in nine unelected individuals. In part, this is justified by arguing that Constitutional interpretation largely involves purely legal questions, rather than what are fundamentally political judgments about how to balance among competing values. In part, this system also persists because of a perceived lack of viable alternatives. This essay begins to explore how a recent innovation in governance — citizens’ assemblies — might open up new possibilities for addressing this long-standing challenge in American governance.

Congress does have significant powers over the court, with the authority to change the number of justices and to control the topics over which it has jurisdiction. But allowing Congress to exercise such power might give too much power to that branch of government, fatally weakening the court’s ability to act as a check on the political branches. The public may also be uninterested in granting lawmakers more power, given Congress’ current dysfunction. Term limits or other reforms to the composition of the court seem worthy but would be slow-acting at best and do not solve the fundamental problem: that, on occasion, constitutional interpretation necessarily requires value-laden and not purely legal judgments.

“The court’s unchecked ability to render final judgments risks turning the court into a judicial aristocracy without legitimacy from the people.”

Citizens’ assemblies, a new innovation in governance, may provide an answer. Similar in some ways to a jury, a citizens’ assembly is a body formed from randomly selected citizens who engage in structured deliberations that recognize multiple viewpoints, then move to consensus on important issues. Such assemblies differ from juries in having more participants, more structured deliberative processes and an ability to summon experts to inform them. Over the last several decades, experience with and understanding of such assemblies has grown substantially. We now have a much better understanding of how to best choose the membership and organize the proceedings in such assemblies so that diverse, representative groups of lay people can engage in informed, substantive deliberation and consensus-building to help resolve challenging societal issues.

A growing number of jurisdictions around the world have recently employed citizens’ assemblies to help resolve political dilemmas on topics ranging from city budgeting to constitutional amendments. These assemblies give voice to citizens on complex, value-laden topics outside of what can be the polarizing dynamics of electoral politics. They have, for instance, assembled a climate action plan for France, some parts of which the government used in a new climate law, and provided recommendations on abortion that Ireland used to amend its Constitution. Some states, such as California, use a citizens’ assembly-like process for legislative redistricting.

Citizens’ assemblies now seem a viable addition to the tools of democratic governance. In particular, they might prove useful in helping America address the challenge of allocating the power to interpret the Constitution. Most of the Supreme Court’s judgments are not controversial. But on some occasions, a court ruling regarding the constitutionality of some legislation or government action can have major implications on American life. (The court’s judgments regarding statutory interpretation can be addressed by Congress, so are not at issue here.) Citizens’ assemblies could provide a means to review such constitutional judgments.  While many details obviously need to be worked out, it’s worth exploring how such a process might work. More here.

Robert Lempert is currently serving as a principal researcher at the RAND Corporation and as a professor in the Pardee RAND Graduate School.