The Supreme Court has a shadow docket — it needs a shadow court

In England and other parliamentary countries, the loyal opposition appoints a shadow cabinet from among its members. A shadow cabinet has no formal legal power. Each shadow minister has specialized knowledge to critique policy in areas like defense, foreign affairs and finance.  

If worthy of its shadow, the opposition creates an alternative agenda, as though a government is waiting, elaborating on the platform that could turn up in the next election cycle and bring the shadow government into power.  

I discussed the possibility of a shadow cabinet in the United States with Sen. Elissa Slotkin (D-Mich.), to counter the horrors of a Defense secretary like Pete Hegseth or a Health and Human Services secretary like Robert F. Kennedy Jr. She said she had presented the idea to minority leader Chuck Schumer (D-N.Y.), but he had no appetite for it. 

So, let’s try another institutional framework. How about a shadow court to ride shotgun on our supremely partisan Supreme Court? 

Suppose we had another constitutional court, selected more democratically, instead of having people appointed by a president who may or may not have been popularly elected and confirmed by a malapportioned Senate, where Wyoming has the same representation as California with roughly 1/67th of its population.

A shadow court — with House, not Senate confirmation, and term limits instead of lifetime tenure — could take on the same issues, maybe even the same cases as the Supreme Court. A thought-provoking book published last month, “The Shadow Court: Rescuing Democracy from the Supreme Court” by Fordham law Professor Julie Suk proposes just that. Suk suggests that “shadow justices could freely develop persuasive........

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