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 lines of constitutional reasoning with the political branches and the people as their audience.”The Supreme Court has unbridled power to make policy from sources outside the Constitution.

There is no explanation for Bush v. Gore — which gave George W. Bush the presidency despite Al Gore winning the popular vote — other than five justices didn’t like Gore. There is no explanation for Dobbs v. Jackson Women’s Health Organization other than five justices didn’t like abortion. There is no explanation for Trump v. United States other than six Republican justices did not like to see Trump prosecuted as a former president for criminal acts committed while in office. The term qualified immunity appears nowhere in the Constitution.

We needn’t mention Citizens United, which opened the floodgates to dark money in politics, or Trump v. Slaughter, which allowed Trump the power to politicize the independent administrative agencies. And I could go on.

The Supreme Court has vast power and minimum accountability. As Justice Robert Jackson put it, “We are not final because we are infallible, but we are infallible only because we are final.”At no point does the Constitution’s text confer the power to set aside federal statutes. Chief Justice John Marshall seized that power in 1803, declaring “It is emphatically the duty of the Judicial Department to say what the law is.”Our Supreme Court is inefficient in discharging that duty.

It cannot say what the law is in the abstract. It can only decide “cases or controversies” where the plaintiff shows real injury. In many countries, there are constitutional courts which largely arose in the 20th century that can address constitutional questions in the abstract. Not so in America.

Many foreign systems permit advisory opinions at various stages of the legislative process. In those jurisdictions, specific parties, usually including the legislative minority, can request an advisory opinion before or immediately after the passage of a law.

Today, the federal government can’t undertake any important action if five members of the Supreme Court don’t think it’s a good idea. And once that majority has spoken, that’s all she wrote.

By nominating shadow justices and appointing them through House confirmation, we would have a far more democratic process than we have now. Congress by statute could require the selection to be made from a list provided by “a democratically accountable body.”It could require shadow justices to be lawyers with demonstrated qualifications in constitutional law and litigation.

“An additional court that is composed more democratically will make constitutional law more legitimately,” wrote Suk.

Any such change might face hostility from the present court, which may retreat turtle-like into a shell of self-protectiveness. But a conservative majority striking down a shadow court authorized by Congress would be an unseemly stretch.

Would the shadow court be any more influential than a law review article or an amicus brief? Maybe not. But it would present a disciplined mechanism for shadowing the issues that come before the court of last resort. The Constitution itself has authority only because it is persuasive. Constitutional law is a sustained argument about the meaning of democratic self-government. A body that offers a reasoned critique of the current court might, over time, enrich this dialogue and compel moderation.

We have a shadow docket where the court makes snap judgments; all too often decided without sufficient briefing, oral arguments or signed opinions explaining the court’s reasoning. Why not a democratically-appointed shadow court?

After all, the Constitution itself begins with the words, “We, the People.”James D. Zirin is a former federal prosecutor in the Southern District of New York and a published legal analyst.