The Supreme Court Has Abandoned Its Role as Democratic Backstop and Must Be Reformed and Checked by the Public and Congress
Source: Dahlia Lithwick. "Here’s the exact moment the Supreme Court went off of the rails.." November 3, 2026. slate.com
The Gist
The panelists argue that the Supreme Court no longer protects democracy. Instead, a handful of justices can wipe out major laws that Congress and the public built through broad coalitions. They say the fix is to reform the courts and limit the Court's power, and to educate people so they demand change.
Conclusion
The Supreme Court has ceased to function as a steward and backstop of American constitutional democracy, so the public and Congress should reclaim the Constitution from the Court's claim to sole interpretive authority through court reform (expansion, term limits, limits on judicial review) and popular civic education.
Premises
- The Court has systematically dismantled protections for access to education, the economy, and elections (e.g., Shelby County, Students for Fair Admissions, the overturning of Roe), beginning with attacks on voting rights.
- Five justices can nullify landmark legislation built through broad political coalitions and bipartisan votes (e.g., the ACA challenge, Callais and the Voting Rights Act), so the Court's thin majorities override democratic lawmaking.
- The Court has expanded executive power through the unitary executive theory, weakening laws meant to rein in abuses of executive power.
- Institutions, including the Court, failed to respond to a massive citizen uprising over the Kavanaugh nomination, eroding public trust in the pathways for democratic participation.
- Judicial capture of courts, at both the lower and Supreme Court levels, depends on public ignorance, and when people understand more, they demand more reform.
- Because the Court's composition does not reflect the country and its power is totalizing, structural remedies (expanding the courts, term limits, supermajority or consensus requirements for striking down federal laws) are warranted.
Assumptions
- The Court's recent rulings reflect ideological capture rather than good-faith legal interpretation.
- Congress has legitimate constitutional authority to restructure the courts and restrict judicial review.
- Popular majorities and Congress are more legitimate interpreters of constitutional meaning than a five-justice majority.
- Public civic education will translate into political demand for reform.
- Structural reforms such as expansion or consensus requirements would improve outcomes and legitimacy without worsening politicization.
- Democratic legitimacy is best measured by broad legislative coalitions and public opinion.