A Way To Return The Constitution To The People

Having citizens’ assemblies review U.S. Supreme Court decisions could restore faith in the system.

Alberto Miranda for Noema Magazine

Robert Lempert is currently serving as a principal researcher at the RAND Corporation and as a professor in the Pardee RAND Graduate School; however, the views, opinions, findings, conclusions and recommendations contained herein are the author’s alone and not those of RAND, the Pardee RAND Graduate School or its research sponsors, clients or grantors.

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.

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.

“Recent rulings have heightened concerns that the U.S. Supreme Court is too powerful — and unaccountable in a way that harms its legitimacy.”

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.

For instance, after a controversial constitutional ruling by the Supreme Court, there might be a time window during which Congress or some number of state governments could call for a citizens’ assembly. If called, the assembly would be chosen to represent a microcosm of the U.S. population — a mini-public — achieved through a random sampling organized to ensure that the group matches the country’s demographic profile. The group’s size — about one hundred individuals — would be large enough to prevent a few individuals from dominating, but small enough so that the group could engage in real deliberation. The assembly would meet in person over one or two weeks, with sufficient remuneration so that all could participate. The justices of the majority and of any dissent could make their case to the assembly, as would other experts, some at the invitation of the assembly.

The assembly would have the power to agree or disagree with the court’s judgment. If the latter, the court’s decision would not be binding as precedent on the lower courts until and unless the court revised its decision to reflect the assembly’s concerns. The assembly would have no power to make binding legal judgments, but would be empowered to either agree with the court’s judgment or disagree and send the issue back to the court with recommendations for how the justices might more appropriately weigh competing ethical values. The process could repeat one or two times — that is, having revised its decision, the court’s new opinion would stand unless another assembly was called.

As a primary advantage, such assemblies would enable the court to honestly embrace the value-laden nature of Constitutional interpretation in a way that maintains the court’s credibility and enhances its democratic legitimacy. Assemblies would provide the justices, acting as legal experts, an opportunity to engage in structured conversation with a representative group of citizens and demonstrate that, upon careful reflection, the public finds credible the court’s judgment on contentious issues. In establishing such assemblies, Congress could exercise its power over the court, but in such a way that could strengthen, rather than limit, the Supreme Court’s ability to block power grabs by the political branches, to protect the workings of democracy, respond quickly in emergencies and to exercise their expert judgments in improving the clarity and consistency of the law.

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

The citizens’ assembly concept also raises many questions. For instance, who would organize and facilitate the assemblies? What demographic categories would be used to define a representative sample of the American population? How to balance the need for transparency and the need to protect assembly participants from outside influence and potential retribution or reward for their choices?  Are explicit safeguards required to prevent assemblies from being called too often? Perhaps most importantly, the court is intended to serve at least in part as a counter majoritarian institution. To what extent do we trust lay people to participate in even a highly structured process that allows them to influence judgments about the criminal, civil and property rights of political minorities? Many constitutional decisions respecting the procedural rights of criminal suspects, for example, are not very popular.

Despite such questions, it has become increasingly understood in recent years that, while expert judgment is necessary to navigate most of our complex society’s most difficult challenges, experts exercising their technical judgments without the engagement of lay people often end up imposing the experts’ values on others. Not surprisingly, the court’s unchecked ability to render final judgments risks turning the court into a judicial aristocracy without legitimacy from the people. Supreme Court Justice Robert Jackson famously observed, “We [the court] are not final because we are infallible, but we are infallible only because we are final.”

Citizens’ assemblies need not be called often, but the very ability to do so would help keep the court humble, and not always final. The extent of the court’s power to interpret the Constitution is a long-standing challenge. It’s worth considering how citizens’ assemblies, a new tool for governance, might help the court to act more in the way it was intended: as the people’s lawyers, and not their lords.