Reimagining a People’s Court

A People's-led Playbook for Constitutional Review

#unifyUSA Opinion paper

Photo by Tim Mossholder on Unsplash

The Evil Umpire

The whole idea of a constitution has one fundamental weakness: Who decides what it means?  In the United States, this subtle but immense power is given to the Supreme Court, and the results have been…anything but subtle. Through its long history, the court has exercised near-absolute power through repressive, sweeping, and downright dangerous rulings. A sampling: “Black people aren’t people.” “Corporations are people.” “You have an unenumerated right to abortion—just kidding, no you don’t.” Most recently: “The ban on insurrectionists holding public office doesn’t actually mean what it says,” and, “The president is above the law—even in cases of treason.”  

These interpretations serve as binding national policy, despite the justices’ total lack of accountability to the people.  The court’s insulation from public sentiment, originally intended to help keep their rulings objective and apolitical, has backfired spectacularly. Instead, lifetime tenure and concentrated power have made appointing justices a partisan dream. And that’s not to mention the luxurious gifts, bribes, and perks lavished on them by billionaires—you know, just for being friends.  No longer can we legitimately claim that the Supreme Court simply “calls balls and strikes.” The umpire has become the most dominant player on the field—the apotheosis of a judicial tyrant. As a result, the whole game of democracy is in jeopardy.  

Last week we presented a vision for a reformed congress, where everyday citizens, chosen by lottery, were integrated into the legislative process. A new model using the same ideas could transform the court, creating a fair, upstanding, and qualified umpire for our democracy. Our constitutional system needs bold changes that improve the lives of everyday Americans. But to be legitimate, these changes must come from the people themselves—not some high judicial priesthood. For our democratic experiment to function, we need a referee that isn’t looking through red- or blue-tinted glasses. Or any glasses at all. For freedom to flourish, justice must be blind. 

Judicial Branch Structures

A New Playbook

Our proposal aims to solve three major problems:

1. The politicized selection of judges and cases

2. The court’s un-democratic insulation from public will

3. The overreliance on norms, precedent, & individual judges to protect fundamental rights

…by implementing three major reforms:

1. Randomized Selection of Expert Judges and Relevant Cases

2. A People's Constitutional Assembly to Review Landmark Decisions 

3. Separating Constitutional Review from the Ordinary Federal Court System

I. Randomized Selection of Expert Judges and Relevant Cases

Why do we let politicians pick our judges?  Would you let the team with the most players choose the referee?  Choosing an unbiased official is clearly a job for unbiased citizens, and we know how to find those—via democratic lottery!

We’re not proposing that random citizens serve on the Supreme Court. Just that we mix randomness into the process of vetting and selecting judges to make sure that political parties can’t capture the process. Imagine: instead of presidents choosing political cronies, judicial nominations would be made by a randomized committee of citizens and legal scholars. Instead of the Senate’s dog-and-pony show, imagine confirmation hearings held by an independent citizens’ jury. Instead of a single bench of 9 permanent justices, imagine a rotating bench of 15, selected by lottery from a pool of 1,500 (the “Judicial Assembly”) pre-approved by citizen vetting.

Why go to the trouble of all this randomness?  Because it interrupts the strategies of court-packing and case-selection that create backdoor opportunities for rigging the game.  Having one permanent Supreme Court, even a balanced one, invites corruption.  In particular, the power of the court to choose its own cases allows justices to pursue political outcomes and slowly impose their pet agenda for the country. If we reallocate case selection to a separate committee, and decide the composition of each case’s bench via a lottery among justices, there’s no way to tip the scales towards a desired outcome.  Plus, a large number of potential justices reduces the value of buying influence with any one, or craftily re-politicizing the appointment process.  

Now that we’ve democratized appointments, why stop there? Let’s talk impeachment. When judges betray their sacred oath by accepting bribes or selectively reinterpreting the constitution, it shouldn’t be so hard to remove them. This is the one scenario where we actually want our representatives to be timid. We want judges to stay in their lane and interpret the constitution as narrowly as possible while preserving the established freedoms of the people. A scared judge is a good judge, as long as they’re scared of the right things (general public sentiment, an ethics watchdog, and the scrutiny of a broader legal community). That’s why we’d empower an ethics committee, also assembled by lottery, to bring impeachment proceedings before the citizen juries ( like the juries that would confirm justices to begin with).

II. A People's Constitutional Assembly to Review Landmark Decisions

Sometimes the whole game hangs on a single foul call. In these moments—when the stakes are high, the coaches and fans in an uproar—a single ref is insufficient. We call in backup, and we go to the tape.  

Randomness is a crucial tool for impartiality, but even an impartial court can reach decisions that the American people find unacceptable. In a democracy, shouldn't We the People be the ultimate authority on our founding document? This is the intuition behind the People's Constitutional Forum. When a Supreme Court bench hands down a widely unpopular decision, a minority of the Judicial Assembly (or a ⅔ majority in Congress) could put it on hold while a PCF convenes to review it.  Think of this like a constitutional jury of the people, or like a legislative Citizen’s Forum (see last paper) but with a very specific mandate. The PCF, composed of ~500 citizens-by-lottery, would convene over weeks, hear arguments from the Judicial Assembly, and then decide whether:

1. The Supreme Court’s ruling should be invalidated as inconsistent with the text of the constitution,

2. The ruling should be upheld as consistent with the constitution, or…

3. The ruling followed the letter of the constitution but not its intention, and should be kept on hold while the constitution is amended for clarity.

The forum wouldn't micromanage every court ruling But on the biggest constitutional questions facing the nation, the people would have the final say. Giving them the authority over deeper constitutional meaning would reinforce the court’s narrow mandate to read the constitution objectively. Empowering them with option C would help keep the text of the constitution in line with the times, spelling out in plain language all the rights and freedoms we seek to protect. This hybrid approach respects citizen sovereignty over judicial review, while leaving the work of ordinary legal procedure to professionals. It recognizes both that expertise matters and that wisdom doesn't dwell in ivory towers alone. It’s also found in the collective experience of the American people.

III. Separating Constitutional Review from the Ordinary Federal Court System

Perhaps the thorniest problem with the federal judiciary is that it’s actually refereeing two different games. In one, it settles concrete disputes between parties. In the other, it interprets the abstract meaning of the constitution. This essentially puts two balls on the field at once, doubling the referees’ power to make arbitrary calls. Judges can use any angry plaintiff as an excuse to strike down a law they also disagree with.  They can bend overtly constitutional cases around minor technicalities of English common law. Essentially, they get to pick which rulebook to pull from in a given moment. In the ensuing chaos, every piece of controversial legislation gets stuck in limbo while it’s being appealed up the chain from District, to Circuit, to Supreme, and the fans can’t keep track of all the cards being thrown.

We propose a strict separation between these two games. Ordinary federal courts should not be empowered to declare laws unconstitutional via concrete cases. Conversely the Supreme Court should not serve as the highest court of appeals for every dispute, but should focus exclusively on constitutional questions. In concrete cases where the arguments hinge on constitutionally-guaranteed rights, the lower courts should either rule based on a strict survey of Supreme Court precedent, or pose an abstracted version of their case to the Supreme Court’s case committee.  

For example, the question of 2023’s Students for Fair Admissions v. Harvard College could be abstracted as, “Does the equal protection clause outlaw racial considerations intended to compensate for historical anti-minority discrimination?”  The concrete case could be paused while that question was considered by the Supreme Court, separating the tasks of deciding general principles and ruling based on case specifics.

Another benefit of taking plaintiffs out of the picture is the opportunity to review the constitutionality of laws before they’re even passed. This practice reduces the real-time conflict between legislators and judges, and would lead to less disruption in Americans’ daily lives. Legislators could consult internal constitutional review panels for advice while drafting. And bills passed by the House could be submitted to Supreme Court review before passage, without a concrete case attached. Such pre-approvals would establish precedent, reducing future challenges. Meanwhile, judicial vetoes would be subject to the same mechanisms of citizen override as any other case before the court. This system would help keep the law of the land consistent for citizens. It would reinforce constitutional legitimacy. And it would build a solid body of constitutional scholarship to keep the Judicial Assembly consistent in its rulings.

Conclusion

“Of all the despotisms on earth,” Hannibal Hamlin, Lincoln’s Vice President, once said, “a judicial despotism is the worst. It is a life estate.” Today more than ever, that aphorism rings true. In the wake of the Supreme Court’s unhinged behavior, calls for reform are growing. Good. Yet most fail to challenge the logic of our current system. They still imagine a single referee, presiding alone over every game in Major League Democracy, season after season. No league commissioner to answer to. No instant replay to check their calls. And two rulebooks to throw at their least favorite team. How could we expect them not to start fixing games for a cut of the winnings?

When trust in democracy’s broken, we all lose. There’s no reason to entrust constitutional care to nine lifetime political appointees. The time-honored tradition of jury service provides us an alternative avenue to ensure that our umpire is truly “just calling balls and strikes.” By applying randomness rationally, we can appoint unbiased public servants as judges. We can also settle our most fundamental constitutional questions through deliberative democracy. In doing so, we’ll reinvigorate our civic life, increase public trust in the judiciary, and create a more robust, responsive constitutional order. Let’s have fun out there on the field—and let’s have a nice clean game.

For context on how such sweeping changes could be enacted in real life, see our website at #unifyUSA.

#unifyUSA published a detailed paper on The People’s Bench: Reimagining Constitutional Review.

References

1. Coccoma, Nicholas. “Lotteries and the Supreme Court.” The Similitude (blog). February 17, 2022.

Lotteries and the Supreme Court

2. Hansen, Mogens Herman. Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology. Norman: University of Oklahoma Press, 1999.

3. Mendes, Conrado Hubner. Constitutional Courts and Deliberative Democracy. Oxford: Oxford University Press, 2014. 

4. ope, Maurice. The Keys to Democracy: Sortition as a New Model for Citizen Power. Bristol: Policy Press, 2023.

5. Threlkeld, Simon. “Why America’s Judges Should be Chosen by Citizens’ Juries.” Dissident Voice (blog). August 9, 2016.

6. Wang, Melody. "Don't Let the Court Choose Its Case." The New York Times, October 27, 2020. 

7. Zurn, Christopher. Deliberative Democracy and the Institutions of Judicial Review. Cambridge: Cambridge University Press, 2007.