In parliamentary systems, the opposition party forms a shadow cabinet, with each member tasked to critique and propose alternatives to government policy. This structure ensures that even when out of power, the opposition is ready to govern and offers the public a clear choice. The United States lacks such a formal opposition mechanism, but the idea has been floated in various forms.
Sen. Elissa Slotkin (D-Mich.) told former federal prosecutor James Zirin that she had proposed a shadow cabinet to Senate Minority Leader Chuck Schumer to counter the influence of figures like Defense Secretary Pete Hegseth and HHS Secretary Robert F. Kennedy Jr., but Schumer showed no interest. So Zirin, writing in a recent column, suggests a different institutional innovation: a shadow court to serve as a check on the increasingly partisan Supreme Court.
The proposal, detailed in Fordham law professor Julie Suk's new book, The Shadow Court: Rescuing Democracy from the Supreme Court, would establish a parallel constitutional court with more democratic legitimacy. Shadow justices would be nominated by the president and confirmed by the House of Representatives—not the Senate—and would serve limited terms, not lifetime appointments. Their role would be to issue advisory opinions and reasoned analyses on the same cases and constitutional questions that come before the Supreme Court, offering an alternative interpretation to the public and political branches.
The Supreme Court's decisions have often been criticized as driven by partisan preference rather than constitutional text. Zirin cites Bush v. Gore, which handed the presidency to George W. Bush despite Al Gore's popular vote victory; Dobbs v. Jackson Women's Health Organization, which overturned abortion rights; and Trump v. United States, which granted broad immunity to former presidents. He also points to Citizens United, which opened the door to unlimited dark money in politics, and the recent ruling allowing Trump to politicize independent agencies. “The Supreme Court has vast power and minimum accountability,” Zirin writes, quoting Justice Robert Jackson: “We are not final because we are infallible, but we are infallible only because we are final.”
The Constitution does not explicitly grant the Court the power to strike down federal laws. That authority was seized by Chief Justice John Marshall in Marbury v. Madison (1803), who declared it “the duty of the Judicial Department to say what the law is.” But the Court can only decide actual cases or controversies, not abstract constitutional questions. Many other democracies have constitutional courts that can issue advisory opinions on legislation before or after enactment, often at the request of the legislative minority. The U.S. lacks such a mechanism.
A shadow court could fill that void. By requiring House confirmation, the selection process would be more reflective of the popular will than the current system, where the Senate's malapportionment gives Wyoming the same weight as California, which has 67 times its population. Congress could also mandate that shadow justices be chosen from a list provided by a democratically accountable body, and that they be experienced constitutional lawyers.
Suk argues that “an additional court that is composed more democratically will make constitutional law more legitimately.” The shadow court would not have binding authority, but it could serve as a powerful moral and intellectual check on the Supreme Court's excesses. As Zirin notes, the Constitution itself derives its authority from persuasion, not force. A body that offers a reasoned critique of the Court's decisions could enrich the national dialogue and perhaps nudge the Court toward moderation.
The Supreme Court already operates a “shadow docket,” issuing emergency rulings without full briefing or explanation. A shadow court would provide a disciplined, transparent mechanism to challenge those decisions. As Zirin asks, “Why not a democratically-appointed shadow court?” The Constitution begins with “We, the People,” and a shadow court would give the people a more direct voice in constitutional interpretation.
While the current conservative majority might resist such a challenge, striking down a congressionally authorized shadow court would be an unseemly stretch. The proposal is a bold but practical step toward checking a court that has become increasingly unaccountable to the American public.
