The Scandal of Democracy: Seven Theses for the Socialist Left


The Supreme Court has always been the scandal of American democracy. How do you justify the power that nine unelected judges—almost all of them, historically, white men—wield in a society that styles itself a democracy?


That scandal reached a peak in the last third of the twentieth century, when a combination of hard-right judicial theorists (Robert Bork and Antonin Scalia among them) and nervous liberals started worrying about what was called “the counter-majoritarian difficulty” or the “counter-majoritarian dilemma.”


The result of that reconsideration of the Court and judicial review was, among other things, the theory of constitutional interpretation that we call originalism. Originalism held that the only justification for the Court reviewing and overruling the decisions of democratically elected legislators was that it was doing so on the basis of the Constitution itself. Not the living Constitution—that is, as a progressive document whose meaning changes over time—but the original Constitution. Because the original Constitution, as a written text, represents the expressed will of the people, enacted in actual words that are binding across time. Counterintuitively, when it comes to the Court, the idea is that it is the cold, dead hand of the past, interpreted through the abstemious and self-effacing modesty of the present, that is most likely to yield the greatest democracy in the future. That, any rate, was the theory, and it came to be adopted by many liberals as well. As the liberal Laurence Tribe, paraphrasing the liberal Ronald Dworkin (paraphrasing either Nixon or Friedman on Keynes), would say in 1998: “We are all originalists now.”


What a difference two decades make. In the now of 2018, we find ourselves in the peculiar position of having two Supreme Court justices—Gorsuch and Kavanaugh—elected by a president who lost the popular vote (that is, does not, on any credible theory of democracy, represent the will of the majority of the people) and confirmed by a group of senators who represent a minority of the people (that is, do not, on any credible theory of democracy, represent the majority of the people). Those two justices—a minority chosen by a minority and confirmed by a minority, with each minority marinating in whiteness, maleness, and wealth—will comprise 40% (or 2/5) of the 5 votes that will be striking down progressive legislation and policies of Congress and the states, legislation and policies reflecting the will of the majority. This is the new frontier of the counter-majoritarian dilemma.


The politically smartest—because it is the truest—answer to this latest iteration of the counter-majoritarian dilemma is to go after all three of the institutions that have come together to create this latest iteration of the scandal of democracy: the Supreme Court, the Senate, and the Electoral College. We cannot stop merely at criticizing the Supreme Court, packing the Court, calling into question its legitimacy. It is the entire panoply of these three institutions—the Court, the Senate, and the Electoral College, which are baked into the constitutional design of this country—that we must confront.


The principle to mount against that scandal of democracy is simple: one person, one vote. In a democracy, no one’s vote should count for more than any other person’s vote. In the democracy of the future, where the 2/5 Rule of Gorsuch/Kavanaugh shall dominate the polity, it seems like the opposite will be the case. Every rich white man’s vote that stands behind the votes that Gorsuch and Kavanaugh will cast on the Supreme Court will carry more weight than that of everyone else.


Mounting this kind of political program against the scandal of democracy—which involves confronting a good deal of the Constitution, not all of it, but a good deal of it—would be radical. I don’t expect the Democrats to do it. It seems like a great task for the socialist left to take up. And very much in keeping with the historical reality of the socialist movement, particularly in Europe. Democratic reform in Europe was won by the socialist movements. Democratizing ancient, sclerotic institutions of the state has always been the project of the socialist left.


  1. Les Cranbrook October 8, 2018 at 10:00 am | #

    1. Term limits for justices. Two SCOTUS appointments per 4-year POTUS term.

    2. Increase House representative count to 1200 or more to move closer to one man one vote. The representation for the nation doesn’t need to fit into a tiny room. It will lead towards parity for the one man, one vote ideology.

  2. mark October 8, 2018 at 10:17 am | #

    I think the concept of a President should go too.

    I have read enough of Jonathan Israel’s ‘Expanding Blaze’ to see how America could and should reconnect to its radical enlightenment past in its own Revolution, a radical enlightenment out of which came the idea of one adult one vote democracy along with the belief that the proper test for the Revolution was whether it could abolish slavery and make justice equal to all.

    For the radical enlightenment a single parliament based on proportional representation with frequent elections was the model. One House to equally rule them all.

    • Brett October 8, 2018 at 11:33 am | #

      We don’t need a President if we’ve got a Prime Minister, not even a symbolic one (which I’ve always thought was a bad leftover from monarchy).

  3. Brett October 8, 2018 at 11:32 am | #

    Even Britain, with its full parliamentary supremacy, has a supreme court that reviews legislation and its execution (although they can’t strike-down primary legislation).

    • Jenni Buhr October 9, 2018 at 1:39 am | #

      A very new Supreme Court brought in by Blairites in their effort to emulate the US. Not entirely welcomed, used, or understood.

  4. Nicholas Raia October 8, 2018 at 12:16 pm | #

    Sadly, the counter-majoritarian dilemma feedback loop will prevent us from ever confronting these institutions. This could just be my current feeling of despair clouding the realm of possibilities; I truly hope that is the case.

    • Mark Brown October 16, 2018 at 10:45 am | #

      There are FOUR justices who are illegitimate. Roberts and Alito were also appointed by a President who lost the popular vote and who’s election was highly undemocratic.

  5. 123 October 8, 2018 at 1:00 pm | #

    RE the Senate. There is a good argument to be made against majoritarian rule alone, not least the needs of agricultural areas of the country that almost by necessity have smaller populations. The issue is not the Senate as an institution representing entire populations, both dense urban and more sparsely populated rural areas, as well as a longer election cycle. The problem is how divorced from reality current state borders are from our populations. There is no reason California should have only two Senators with its 39.54 million resident – the same number of Senators as Wyoming with its 0.564 million residents. State boundaries should be reconsidered, i.e., an Amendment allowing for the merger of states like Wyoming/Montana/Idaha/North & South Dakota, building them up to some acceptable threshold ratio of representation vis a vis other states. Or, states like California, Texas, Florida, and New York should be divided until they reach some threshold ratio of representation vis a vis other states. Oneproblem is, of course, the definition of “acceptable threshold ratio of representation vis a vis other states”; perhaps back to a ratio acceptable at the time the Constitution was ratfied (e.g., Virginia’s 447k v Georgia’s 23.4k). The more daunting problem is the fact that any party dominant in the small states do not want their unwarranted influence in the Senate diluted, though perhaps trading off a few new Republican states for a few new Democratic states (via merger or division) would allow some movement in the right direction.

    Re the Electoral College. Much the same argument in favor of rural representation can be made regarding the Electoral College. It is intended to force politicians to focus not only on deep support (majorities) but also on broad support (across the country). The real problem with the Electoral College is the fact most states have winner take all provisions for assigning their electors, which magnifies entrenched majorities in a given state while effectively throwing away those of the minority. I’ve always found it interesting to note the popular vote percentages in “deep blue” and “deep red” states where there is a significant opposition vote that goes, in many ways, unregistered. If electors were awarded proportionate to the popular vote in each state, Clinton would have won by a single elector (268 v 267), Obama would have won by a much narrower margin (278 to Romney’s 258, 287 to McCain’s 251), Bush would have beat Kerry rather narrowly (278 v 259), and Bush would still have beaten Gore (263 v 262). In fact, the Electoral College is it currently is has allowed each party to think it has had more of a mandate than it has, in fact, earned. A proportional Electoral College demonstrates we’ve been about evenly divided for a while.

    • 123 October 8, 2018 at 1:05 pm | #

      Re The Supreme Court. Term limits are a more proportionate number of Justices relative to our population and/or the number of states would bring the SCOTUS back in line with where the nation is politically. Then again, were SCOTUS to have been in line with American politics in the 60s, we likely would not have had the civil rights rulings we got much less Roe v Wade. SCOTUS is meant to be above the politics of the moment or even a simple majority. It forces deeper, long-term political support, enough so the Court clearly reflects that new paradigm or enough to support a Constitutional amendment that takes advantage of the originalism of the now vs. the originalism of the long past when the Constitution and its Amendments were passed.

      • Jack October 8, 2018 at 10:01 pm | #

        Regarding the Supreme Court (assuming we retain a Senate or rationally transfer its unique responsibilities), requiring a two-thirds (or perhaps even three-fourths) majority for approval of a justice would lead to moderation of philosophical inclination due to necessity of a degree of consensus.

        • Jack October 8, 2018 at 10:05 pm | #

          Yes, prior to Gorsuch, the Senate required 60 votes instead of a simple majority to seat a Supreme Court Justice. No small part of the situation in which we find ourselves is the heavy-handedness of one Mitch McConnell in controlling the itinerary and method of the Senate.

    • 123 October 8, 2018 at 5:26 pm | #

      There are affinities between majoritarian rule and the rule of capital in corporate governance. Should the largest number of voices and investors with the most capital invested be able to make all the decisions? As in Germany, isn’t there a proper role for labor when it comes to corporate governance? Similarly, in a representative democracy isn’t there a valid and proper role for constituencies beyond the geographic and numeric? What about Native Americans and their sovereign states? What about ethnic, racial, and religious minorities? What about the LGBT community or other protected classes? Can’t we imagine a role for them in the legislative branch such that the judicial branch need not be involved in anti-majoritarian rulings quite so often? Perhaps it’s not only representation but a sort of legislative veto on issues directly related to them, e.g., the LGBT representative would need to approve rulings limiting gay marriage, the women’s caucus would need to provide advise and consent on issues pertaining to women’s standing as women.

      One workable way to get at this would be to say that demographics have to broadly match the demographics of the nation; if elections for House and Senate do not align closely enough with these demographics then additional legislators must be added to make up the difference in each protected group. These “additional” legislators representing enumerated groups and classes could have clearly prescribed situations where they must be included in the vote count and may even have veto or quasi-veto, or consent powers, e.g., on issues specifically related to their standing. (Incidentally, this could be one good way for voters in the District of Columbia and Puerto Rico to have stronger voices in Congress, too, when an issue directly impacts their interests.)

    • Jack October 8, 2018 at 9:46 pm | #

      Regarding the Senate, a re-drawing of state lines to balance senatorial representation across population will have the effect of replicating the House. The Senate, therefore, becomes superfluous. I find Mr. Cranbrook’s suggestion of expansion of the House and elimination of the Senate more compelling.

      As for the Electoral College, when it failed to execute its responsibility to prevent from succeeding to the office of president one who is a mad man, a demagogue, or beholden to foreign powers, it declared its own obsolescence. It is time to eliminate the Electoral College and let the popular vote prevail. To the concern of protection of the lesser populated agricultural regions of our nation, it is self-interest that will provide protection from the potential tyranny of the larger urban population. Hurting those who produce the food that sustains the population will have the effect of starving the non-agricultural majority. Ultimately, any majority will temper their vote with the needs of their bellies.

      • Jim October 11, 2018 at 1:47 pm | #

        With all due respect, the Electoral College was not created to protect agriculture-dominant states. That was part of the purpose of the creation of the Senate. The Electoral College was created as an anti-democratic check on the will of the people as the founders were suspicious of direct election of the President. This was also why the Senate was indirectly elected (by state legislatures) until the Progressive Reform Era, specifically 1913.

        • 123 October 11, 2018 at 2:58 pm | #

          Neither the EC nor the Senate were specifically created to address agricultural interests. They were there to balance states with differing population sizes, and to require something more than a simple majority (50% + 1) to pass laws thus tending to protect minority (in the numerical sense) populations and the nation from both tyrants and mob (majoritarian) rule. My short hand was meant to note how today our population is concentrated in cities leaving rural, more agricultural areas less populous; that wouldn’t have been true in the 18th century and wasn’t so until relatively recently in our history; a majority of Americans were rural vs. urban until 1920 (cf. The balancing of deep and broad support looks different today but to the same ends.

          I’m surprised those here are opposed to the structural safeguards in place that have stymied the Right so many times in our history. Not all or most of the time, not often enough, but they are there for a reason. Of course, the argument could be made that a more parliamentary system enacting laws by simply majority without significant checks and balances would have uncovered the Right’s actions for what they are far sooner thus allowing Americans to have more quickly rejected them. It’s also possible that a government of more direct action could have resulted in a Thatcher or an Orban or a Le Pen more quickly than has been possible in a system like ours. Trump and Bush (2000) won because the vote tally was within the forced “margin of error” the EC puts in place. If Democrats were more popular in more places around the country rather than being extremely popular in a more limited number of places, then the EC and the Senate wouldn’t have been in doubt. Democrats, as their name implies, have preferred the numbers alone while Republicans have understood the power of broad support. Republicans were arguing to abolish the EC whenever they are losing, too; it’s never a topic for those who are winning more elections in more place, and comfortably so because they are popular and effective.

          We need to quit bellyaching, win over more supporters in more places, and make sure they vote. We need to prove the Left can make America better, and you can’t provide proof of concept if you can’t pass laws because you didn’t win enough elections. Arguing about the EC and the Senate, and for dogmatic purity on platforms further and further Left won’t win over voters in the middle who have yet to be convinced that Left – much less Further Left and All The Way Left – is in their best interest or America’s.

    • Jenni Buhr October 9, 2018 at 2:16 am | #

      An interesting idea in a stable world. At the moment demographic stability is about to become the next national crisis when climate change creates massive internal migration. No one can predict how many California residents will leave in the next few decades, but we can predict coastal erosion, drought, temperature rise, fire, polluted air and water will end the California dream for many. Every coastal state will be caught in the same population exit and every interior state will be faced with impoverished migrants within the next decade. The time scale for this keeps shortening with each climate study. The reality of devastation is evident on every front page across the world.

  6. Josh Feierman October 8, 2018 at 5:14 pm | #

    1) Get rid of the electoral college. 2) Make the Senate a semi-irrelevant House of Lords kind of thing. 3) I dunno what to do with the Court. It has some utility as a source of continuity since it changes so rarely. It seems to me that the Court has achieved outsize importance because legislators can’t or won’t legislate. Disempowering the Senate would help.

  7. Chris Morlock October 8, 2018 at 6:15 pm | #

    I am dismayed at the whole burning dumpster fire. On the Left, no lessons have been learned and no new ideas have presented themselves since 2016. Bernie continues to act like a Democrat, and most of the “blue wave” is just the usual suspects posing as something new, including Schumer, Pelosi, Booker, Harris, etc. Most of the so called “progressives” that have been successful in primaries seem somewhat suspect to me, including Cortez (who seems to be signalling to Corporate Dems that she will play call) and Gillum (who seems to be already in that Cabal), I see no end in sight to the deep problems on the Left.

    Any structural talk about how government should change is useless at this point. With the Pubs controlling all levels of the courts no meaningful change will EVER take place. More justices on the court? Representatives for workers in corporate governance? Are we being serious?

    The onle answer for me is to dismantle the Democratic Party and move on to new things. It’s an extremely long haul and might even be generational at this point. But there is no way to keep what we call “Leftism” intact” in American politics, it;s an awful collage pieced together by so many bad ideas and rank corruption. The future is about redefining the concepts, purging the corporate money, and finally re-uniting with the working class.

    Liberalism is DEAD.

  8. uh...clem October 9, 2018 at 12:45 am | #

    Somehow Corey’s reflections seem a little dated. Up until 1963 I called my self a “liberal” politically and don’t forget that the context was the reigning economic ideology of a US-modified Keynesianism. I had my own little platform which included a stiff progressive income tax, one person – one vote, and an end to systemic racism. I was standing in my living room one day and it suddenly occurred to me that these worthwhile goals would never happen without some kind of revolution. I stopped immediately of thinking of myself as a liberal, and henceforth have always identified as “radical”. This led me to start reading and studying the marxist tradition in which democratic socialism is seen as a phrase of redundancy. I usually now say I am an adherent of radical democracy, which completely abjures electoralism. Corey – this is 2018.

  9. b. October 9, 2018 at 5:29 pm | #

    Or we could ask, why does 51% define a suitable majority for a vote?

    Make it 2/3rds of the vote for everything, and the biparty con of 50-50 elections will be mathematically impossible. Breaking the biparty duopoly stranglehold on primaries is the fulcrum of the racket.

    If you want to do away with elections entirely, we might fare much better with a lottery. We could even draw the candidates, require that all monetary donations go evenly to those randomly chosen for their campaign, maybe not even have a campaign until a probationary first term, and only then let The People vote.

    Making governance work is plumbing, not ideology.

  10. I Like Beer. Do You Like Beer? (@wetcasements) October 10, 2018 at 4:53 am | #

    “It seems like a great task for the socialist left to take up.”

    I realize Hillary isn’t the most popular person around these parts, but there’s a reason going into November 2016 this neo-liberal shill was telling Stein voters and Bernie Bros “it’s the Supreme Court, stupid.”

    For various structural reasons, a socialist left in America will not gain any sort of power without working with (and probably piggy-backing on, to a large extent) the Democratic Party. There’s a reason we have a growing DSA, but not much of a Socialists of America, let alone a Communists of America.

    “1) Get rid of the electoral college.”

    I couldn’t agree more. The EC was literally made to appease racist slave-owners.

    But please tell me how we get this kind of major Constitutional change by not electing moderate Dems at the national level and encouraging them to support and fight for more leftist ones at the state and local levels? Impeaching Trump would be much easier, and that’s never going to happen no matter how good things are looking for Dems this November.

    Trump’s election has basically pushed us back 50-100 years. (Roe will be overturned by this time in 2019.) There will be no Sarandonian “heighten the contradictions” moment. As of now, there’s either voting for the Dems you like and the ones you don’t so much like, or giving more power to Republicans who are finally and forever the party of Trump.

  11. notforprophet October 10, 2018 at 11:53 pm | #

    This is tantamount to a call for a new French Revolution which we know led to the Terror and Napoleonic dictatorship. Cory Robin is the reincarnation of Robespierre. Calling democracy a scandal is tantamount to submitting to totalitarianism as the preferable alternative.

    • Nicholas Raia October 20, 2018 at 4:11 pm | #

      Did you just read the title before replying?

  12. Z October 11, 2018 at 7:23 am | #

    “The politically smartest—because it is the truest—answer to this latest iteration of the counter-majoritarian dilemma is to go after all three of the institutions that have come together to create this latest iteration of the scandal of democracy: the Supreme Court, the Senate, and the Electoral College” Yes, exactly.

  13. good2go October 11, 2018 at 4:05 pm | #

    “…two Supreme Court justices—Gorsuch and Kavanaugh—elected by a president who lost the popular vote.”

    I’ll see you and raise you two: Alito and Roberts, appointed by George W. Bush, who lost both the popular vote and the electoral college.

    • 123 October 11, 2018 at 4:25 pm | #

      In 2000, W. had 271 votes in the EC with 270 needed to win, regardless of one’s personal opinions on Bush v Gore. In 2004, W. won 286 electoral votes, and both Alito and Roberts were nominated/confirmed after W.’s reelection without any question about his electoral legitimacy.

  14. Roquentin October 13, 2018 at 11:36 pm | #

    You are technically correct, but are greatly underestimating how explosive attempting these sorts of reforms would be. I’ve spent enough time in small towns to know that they completely understand that things like the Senate and Electoral college give them a greater degree of influence than they would otherwise have, and they’ll fight tooth and nail to make sure it stays that way. These are the same people who are overflowing with resentment at urban liberals and coastal elites even with these advantages. I don’t care how specious or delusional it is, in their heads they think they are the victims. It’s also worth mentioning that most of them are armed to the teeth. You simply can’t understand the amount of firearms or the enthusiasm for gun culture in much of the US to you see it up close and personal. The Bundy ranch, Ruby Ridge, but far worse and on a much wider scale are very real possibilities.

    In reactions to Kavanaugh, I see so many of the mistakes which led to Trump winning in the first place coming from liberals and even some on the left. Over and over again, they severely underestimate the forces they are up against and believe they have far more control over the state and US government than they actually do. The US is not a functioning democracy, you’ll get no argument from me on that one, but simply stating so changes nothing.

    I can’t help but see impending disaster and insanity around every turn these days. Bleak almost doesn’t capture it.

  15. Glen Tomkins October 16, 2018 at 9:33 am | #

    Democratizing the political branches would work, but would require amending the Constitution. While the majorities needed for an amendment is not impossible in itself — it’s been done 27 times! — I can’t think of an example of it being done to pass amendments that take power from as many states as these amendments would. The small states benefit from our deviations from one man one vote. How are you going to get them to vote to cede their outsized power?

    Realistically, SCOTUS is only going to be depoliticized directly. Adding more justices while our side controls the trifecta would only work temporarily, as the other side would just add even more to achieve their political goals once they got the trifecta. Term limits (aside from arguably requiring an amendment) just quicken the pace of a politically skewed appt process.

    I haven’t heard people talk about limiting jurisdiction, and of course that tool also can be used by the other side, but it seems to me that’s the only realistically possible way to motivate SCOTUS to leave political questions and lex alone, and confine itself to ius issues. It’s a messy and risky solution, but staying where we are now seems riskier and messier to me.

  16. Ed October 16, 2018 at 5:29 pm | #

    Political democracy = Might makes right, and the “Constitution” is illegitimate –
    No Treason
    The Constitution of No Authority
    by Lysander Spooner

    The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. [This essay was written in 1869.] And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. and the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” THEN existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves.

  17. Roger Gathman January 14, 2019 at 1:24 pm | #

    Think that going after the Court is an excellent idea. Not only should there be term limits, but there should be a constitutional council that operates before legislation is voted on to give it the imprimatur of legitimacy. Which should be very broad, leaving to the legislature the power to make laws basically as it sees fit, except in very rare cases.

    Myself, I think the Senate rules have to be changed. As it is, we are being shut down not by Trump, but by a runaway Senate majority leader. The same leader who refused to hold hearings on Obama’s SCOTUS nominees. This has no ground in any constitutional document, and should be simple to fix: the Senate majority leader should simply have to allow votes after stalling them for a certain short period. Its ridiculous in the extreme that this has to even be regulated, but such it is.

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