Has the Supreme Court Sandbagged Democracy?
Essentially, the Supreme Court is our democracy’s appointed buzzkill. In the early nineteen-thirties, it swatted down New Deal legislation passed by congressional majorities. In the fifties and sixties, it overturned segregationist laws enacted by state and local legislatures.
The Supreme Court is like ranked-choice voting or Jdate: how you feel about it depends on whether it’s delivering what you want. Which makes today’s situation confusing. A lawless President is asserting boundless authority, a Republican Congress is playing along, and it’s unclear, from case to case, where the Court will land. The Harvard law professor Cass R. Sunstein’s new book, “Separation of Powers” (M.I.T.), compares this state of affairs to the Nazi era and calls for a strong, independent judiciary. Trump won the popular vote; if there were ever a time for Philip sober to splash cold water on an inebriated majority, this would be it.
Except Philip is serving bottomless mimosas, the Court’s detractors claim. Yes, the Justices struck down Trump’s tariffs and preserved birthright citizenship. But they also gutted the Voting Rights Act, blocked federal remedies to fix extreme gerrymandering, permitted the President to fire commissioners of most regulatory bodies at will, and granted him broad immunity from criminal prosecution for acts undertaken in his official capacity. The last ruling, the three dissenting Justices have warned, “effectively creates a law-free zone around the President,” rendering him immune even if he “organizes a military coup” or “orders the Navy’s Seal Team 6 to assassinate a political rival.”
Two of Sunstein’s Harvard colleagues, Nikolas Bowie and Daphna Renan, take a different approach. In their formidable, sharply argued book, “Supremacy” (Norton), they distinguish two often conflated powers. The power of vertical review allows the Supreme Court to invalidate state and local laws that, in the Justices’ view, contradict federal ones. The power of horizontal review allows the Court to overrule a coequal branch of government and strike down federal laws or regulations. Few make this distinction today, but it reveals a pattern, Bowie and Renan contend: vertical review cuts both ways for liberal democracy, but horizontal review reliably serves regressive ends.
Most critics of judicial supremacy stumble over the fact that a strong Court sometimes benefits their side. Bowie and Renan, by identifying a consistently conservative power of the Court, vault that obstacle. Their case is then straightforward, albeit provocative: using horizontal review, the Supreme Court has sandbagged democracy. The thing needed, even in the days of galloping authoritarianism, is to cut the Court down to size.
Although the Supreme Court’s power to overrule Congress is now broadly accepted, it was bitterly contested for more than a century. Scholars have long known this, and Bowie and Renan’s book follows the tracks of important works like Larry D. Kramer’s “The People Themselves” (2004), Keith E. Whittington’s “Political Foundations of Judicial Supremacy” (2007), and Barry Friedman’s “The Will of the People” (2009). What Bowie and Renan add is that the loudest protests against horizontal review historically came from abolitionists, labor organizers, suffragists, and civil-rights activists.
As those critics noted, the Constitution doesn’t expressly authorize the Court to overturn acts of Congress. That right was supposedly established by Marbury v. Madison, in 1803. President John Adams, after losing his 1800 reëlection bid, used his lame-duck period to fill the judiciary with sympathizers. But some orders commissioning justices of the peace, though signed by Adams and sealed by his Secretary of State, went undelivered. The Court had to decide whether Thomas Jefferson’s Administration could be forced to turn them over, under the Judiciary Act of 1789.
