Brett Kavanaugh is now a Supreme Court justice. Despite multiple credible allegations of sexual assault and a bizarrely aggressive testimony before Congress, he was confirmed and sworn in earlier this month.

In addition to widespread concerns about what the Supreme Court’s rightward shift will entail, the baldly partisan nature of Kavanaugh’s defense has many in the legal academy reflecting on whether and in what ways the American judiciary is a political institution. Many progressive left lawyers argue that of course the judiciary is political, and that that’s a good thing: while most judges are “classist and elitist,” the “Constitution has changed many times without amendment, in part because judges are themselves shaped by the world around them and responsive to the Court’s need for legitimacy.”

This perspective, generally called “popular constitutionalism” or “democratic constitutionalism,” contains important insights about the power ordinary people can sometimes wield over judicial decision-making and the dominant understanding of the Constitution. Yet it fails to explain how that power is exerted and what role that power plays in the broader framework of American governance.