Congress and the Supreme Court were never designed to represent everyone; a feminist future demands new democratic institutions that are accountable to the people they serve.
This is part of a new miniseries FEMINIST 250: Democracy’s Feminist Future, a special Ms. series examining the next chapter of American democracy through a feminist lens. As the nation approaches its 250th anniversary, the series explores how women and marginalized communities have shaped democratic progress, what lessons history offers for the challenges ahead, and how a more inclusive, representative and equitable democracy can be built for the next 250 years.
A feminist pro-democracy agenda must include new lawmaking institutions that can ensure our democracy is more inclusive, more democratic, more representative, and more responsive to the needs of all the people who call America home.
The past decade has brought two major failures of existing institutions to establish the basic requirements of non-patriarchal democracy: Congress’ failure to add the Equal Rights Amendment (ERA) to the U.S. Constitution and the Supreme Court’s failure to guard women’s constitutional right to control their reproductive lives.
After calling out these outrages and trying to reverse them for years, it’s time for feminists to confront the deeper causes of these failures: the dysfunctional lawmaking institutions that were created by the Constitution over 200 years ago to govern the nation.
Congress and the Supreme Court were not designed by the Founding Fathers to be representative of all of the people, and these institutions have become less and less capable of delivering the laws necessary for a modern society of equal citizens. It’s long past time to pursue structural innovations to these antiquated institutions.
To make American democracy more democratic—including the process of amending the Constitution itself—feminists need to find ways to build lawmaking institutions that are actually representative of the people and responsive to their needs.
First, renovating Congress is a must. The Constitution does not have an ERA because the Constitution’s gatekeeping institutions for amending the Constitution—namely, Congress and state legislatures—are not well-designed to represent the people of this country. Not only is the Senate malapportioned, but even the House of Representatives fails to represent because state legislatures control the boundaries of districts. Legislators belonging to the party in power often abuse that power to entrench their party’s control and to disfavor racial minorities that have been disfranchised in the past.
Supreme Court reform is the second key component. The current majority has interpreted the Constitution to allow extreme partisan gerrymandering and to prohibit race-conscious efforts to overcome the pervasive legacy of Black disfranchisement. Since 2022, the Court has also refused to recognize women’s control of their reproductive lives as a fundamental constitutional liberty.
No doubt, as an institution, the Supreme Court fails to meet the needs of a modern feminist and multiracial democracy, at least in part because of the way the Founding Fathers designed it. Each of the nine justices serve for life, after being nominated by the president in the event of a vacancy, upon confirmation only by the Senate, which is a deeply malapportioned and unrepresentative body.
To make constitutional law responsive to the lived experiences of the American people, we need to imagine and build a Court that is more committed to 21st-century Americans and their constitutional values than to the original patriarchal and slavery-permissive values of the 18th-century Founding Fathers. An institution that shapes constitutional meaning and change should be composed with a better approach to the nomination, confirmation and tenure of the justices.
How can we get a Court that is less Supreme and more of a watchdog that defends democracy for all of the people who call America home?
In the quest for institutional innovation, some inspiration can be taken from the modern democracies that included Founding Mothers in the writing of their constitutions—and those that rebuilt nations after genocide, dictatorship and other forms of antidemocratic rule.
In Germany and Italy after Nazism and fascism, new constitutions guaranteed equal rights for women and created new constitutional courts to enforce such fundamental commitments in their constitutions.
American feminists can imagine new institutions, too. We should learn from other democracies not because they are better or more successful, but because we cannot afford to ignore new ideas in the face of spiraling democratic failure.
In many parliamentary democracies, the political opposition forms a “Shadow Cabinet” that shadows the government that is wielding lawmaking power. The shadow government puts forth a concrete alternative policy agenda constantly visible to voters.
Imagine a Shadow Court: a newly designed court that interprets the Constitution, with justices that have term limits, so that every president would have the same number of nominees. Its justices would be confirmed not only by the Senate, but also by the House. With these structural innovations, a Shadow Court would be more representative than the Supreme Court that we now have. Like constitutional courts around the world, the Shadow Court could provide robust constitutional guidance to Congress on the most important policy questions before the Supreme Court decided these big questions through the litigation of concrete cases.
(Editor’s note: Suk’s proposed “Shadow Court” refers to an alternative, publicly accountable constitutional institution modeled in part on the “shadow cabinets” used in parliamentary democracies. She is not using the term in the sense of the Supreme Court’s “shadow docket“—the emergency, undemocratic procedure through which the Court issues time-sensitive rulings outside its regular merits process.)
Even if the Shadow Court did not have the supreme legal power of the Supreme Court, a newly created representative body could publicly articulate a constitutional alternative for the people. It could nudge the American political and legal culture towards more ambitious constitutional change.
With the failure of the ERA, the Supreme Court’s termination of abortion rights and affirmative action, the Supreme Court’s gutting of voting rights legislation and neglect of fair elections, and a president who advances white supremacy and misogyny while seeing no limits to his power, the long-term pro-democracy feminist agenda should include the pursuit of a better Constitution.
The people who call America home deserve modern legal and political institutions that are truly fit to govern and make law for the vast multiracial non-patriarchal nation that they aspire to inhabit. Feminists can lead by expanding the institutional imagination.
Continue Exploring FEMINIST 250
This essay is part of FEMINIST 250: Democracy’s Feminist Future, Ms. magazine’s sweeping series marking America’s 250th anniversary through a feminist lens. Much of the project is already live, including Founding Feminists, which reexamines the nation’s history through the women who shaped it; Feminist Lessons, which explores the defining victories, setbacks and organizing strategies of each decade since the 1970s; and the ongoing Democracy’s Feminist Future section, which looks ahead to the challenges and possibilities facing the next generation. We invite you to explore the full series and catch up on earlier essays, interviews and reported features examining how feminist movements have transformed the nation—and where the fight for a more inclusive democracy goes next.
