Jacob Eisler (Florida State University College of Law) has posted Populist Primacy (Brooklyn Law Review, Forthcoming 2025) on SSRN. Here is the abstract:
Critics of the Roberts Court assert that the conservative justices are remaking American democracy to implement a corrupt Republican agenda. Conversely, the justices claim to be following originalism, with democratic transformation as an incidental side effect. These views share no common ground, and there is little space left for fruitful dialogue. This Article breaks this impasse by identifying the functional democratic theory driving the Court: populist primacy. Populist primacy allocates power to the rank-and-file constituency and sweeps away institutions that moderate popular will. By positing that democracy consists of conflict between self-interested actors, populist primacy rejects the judicial protection of vulnerable groups and constitutional limits on majoritarian entrenchment. Populist primacy explains why the Court has weakened federal oversight of states, limited regulation of political process, and protected only rights of political liberty-and demonstrates that it is doing in service of a particular vision of democracy. Populist primacy turns against the trust of government (particularly the federal government) that marked the post-New Deal jurisprudence. In the alternate, it seeks to directly empower the people themselves-a commitment with a compelling philosophical lineage, but with unresolved questions of implementation and concerns of majoritarian domination.