Has the Supreme Court Sandbagged Democracy?
The liberal list of Republican offenses is long—so long, indeed, that the outrages blur. That time Ted Cruz shut down the government for two weeks seems like a century ago, and, if anyone was ever angry about the White House promoting Melania Trump’s jewelry line, I can’t remember. One wound still festers, though: the Senate’s refusal in 2016 to consider Barack Obama’s Supreme Court nominee, Merrick Garland.
Even before Obama named a candidate to fill the seat left vacant by Antonin Scalia’s sudden death, Republicans had announced their opposition. “Mr. President, you will not fill the Supreme Court vacancy,” Mitch McConnell, the Senate Majority Leader, declared. By nominating Garland, a moderate with admirers on both sides of the widening aisle, Obama offered Republicans a gamble: take Garland now or face whatever Pan-African, gender-free communist Hillary Clinton would summon from the judicial depths when she stepped into the Oval Office in 2017.
Republicans decided to risk it, insisting that eight months before an election was too soon to consider an outgoing President’s nominee. Blocking Garland helped their flailing candidate, Donald Trump. He boiled his pitch to hesitant conservatives down to two words, shouted at rallies: “Supreme Court.”
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Supreme Court. Trump lost the popular vote but won the election. Extraordinarily, this allowed him to appoint three Justices: Neil Gorsuch to fill Scalia’s seat, Brett Kavanaugh to fill that of the retiring Anthony Kennedy, and Amy Coney Barrett, whom Republicans rushed to confirm after Ruth Bader Ginsburg died, at eighty-seven, less than two months before the 2020 election. Trump increased his impact by selecting youthful appointees. If they last as long as Ginsburg did, the oldest, Kavanaugh, will serve through 2052, and the youngest, Barrett, until 2059. “No plausible definition of democracy makes this situation reasonable, let alone desirable,” Erwin Chemerinsky, the dean of U.C. Berkeley’s law school, has written.
Chemerinsky isn’t the first to gape at the Supreme Court’s undemocratic features. The Court is often described as “counter-majoritarian”; its composition doesn’t shift with the political winds. There’s an argument for this. Insulated from elections, Justices can guard against the frenzies that occasionally seize the voting public. Judicial power allows “Philip sober to control Philip drunk,” as Justice David Brewer famously put it in 1893.
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.
It was a bizarre case, reflecting the era’s anything-goes atmosphere. John Marshall, the Chief Justice, had been the Secretary of State who’d sealed those commissions and been responsible for their delivery. Jefferson, his cousin, tried to block the case by signing a federal law that prevented the Court from meeting for fourteen months. Marshall then used Marbury v. Madison to proclaim the Court’s ability to invalidate federal laws that it deemed unconstitutional. Bowie and Renan point out that Marshall (perhaps intentionally) misread the statute that he was invalidating, making the whole thing a turducken of judicial folly.
Because the Court lacked a permanent abode, Marshall read out the ruling from the steps outside Stelle’s Hotel, on Capitol Hill. As with most impassioned avowals made on hotel steps, Congress ignored it. The Marbury decision didn’t compel anyone to do anything, so Marshall’s assertion just hung in the air.
Judicial assertions meant less back then. In ways that are hard to conceive of now, early-nineteenth-century politicians simply defied the Court. States regularly declined to appear before it when ordered. “Virginia’s highest court refused to concede that the Supreme Court had the authority to review its decisions,” Friedman writes. “Georgia actually hanged a man in the face of a Supreme Court order to the contrary.”
Within this rowdy milieu, there was nonetheless a growing constituency for “Philip sober” guardrails. The most eloquent plea for protections against zealous majorities came from the South Carolina statesman John C. Calhoun. His “Disquisition on Government,” published posthumously, in 1851, captured the view of the imperilled minority to which Calhoun himself belonged: slaveholders.
It is, of course, Noah’s-flood-on-your-wedding-day ironic that slaveholders would see themselves as oppressed. But a population boom in the North and the mainstreaming of antislavery politics there raised the threat of a legislative majority abolishing their property. Passions ran especially hot over slavery in the territories, where federal law held sway. The President elected in 1856, James Buchanan, swore that the “great object” of his Administration would be “to arrest, if possible, the agitation of the slavery question.” Buchanan secretly pressed the Court to take the divisive issue out of politicians’ hands. The Chief Justice, Roger B. Taney, obliged. In Dred Scott v. Sandford, his Court held that Black people lacked U.S. citizenship and that congressional bans on territorial slavery were unconstitutional.
Dred Scott, decided in 1857, was the Court’s first use of horizontal review since Marbury and its first substantial use of the power ever. It is widely regarded as the Court’s worst decision—a “hell-black judgment,” the abolitionist Frederick Douglass called it. But Douglass didn’t take Dred Scott as settled law; he took it as an invitation to challenge the Court’s authority. Outrage at Taney’s power grab filled the sails of the antislavery Republican Party and ultimately propelled Abraham Lincoln to the Presidency. In his Inaugural Address of 1861, he declared that permitting robed Justices to settle major disputes would mean that “the people will have ceased to be their own rulers.”
And so, like many before him, Lincoln defied the Court. After eleven slaveholding states seceded to form the Confederacy, Republican lawmakers passed and Lincoln signed a bill that flouted Dred Scott by prohibiting slavery in the territories. Bowie and Renan view this as a heartening reminder that the elected branches of government needn’t defer to the judiciary.
Taney remained Chief Justice until 1864, when he died. During the Civil War, he watched impotently as the Lincoln Administration brushed off rulings on habeas corpus, Black citizenship, and, of course, slavery. “There was no sadder figure to be seen in Washington,” the journalist E. V. Smalley wrote. “He had outlived his epoch, and was shunned and hated by the men of the new time.”
The reign of Republicans during the Civil War and Reconstruction was a democratic breakthrough in two senses. First, legislative majorities overrode the Court, repeatedly ignoring its rulings and adjusting the number of Justices to prevent its interference. Second, those majorities abolished slavery, extended citizenship, and guaranteed equal protection to all Americans. The historian Eric Foner, in “The Second Founding” (2019), describes this as the country’s “first attempt, flawed but truly remarkable for its time, to build an egalitarian society on the ashes of slavery.”
The Court struck back. Toward the end of Reconstruction, it began regularly overturning federal legislation. “By the end of the century, the Supreme Court undid nearly every major law Congress passed to protect multiracial democracy in the South,” Bowie and Renan write. It then turned to opposing labor unions, farmers’ organizations, and capitalism’s other foes.
This was the context for Justice Brewer’s remarks about Philip sober restraining Philip drunk. Judicial sobriety, for Brewer, meant protecting the respectable white man from “the anarchist, the socialist, and every other assassin of liberty.” The “eager and earnest protest of the Anglo-Saxon” was for “individual freedom and absolute protection of all his rights of person and property,” Brewer explained, in 1893. Two years later, he joined a majority in finding the federal income tax unconstitutional. (It would take a constitutional amendment to restore the government’s power to tax incomes.)
Between 1890 and 1936, using both horizontal and vertical review, the Court invalidated more than two hundred progressive statutes, state and federal. Historians call this the Lochner era, for Lochner v. New York, a 1905 case holding that a New York law limiting working hours violated the Fourteenth Amendment. In a characteristic turn, the Justices redeployed protections intended for Black citizens to benefit business owners.
Even establishment politicians like Teddy Roosevelt balked. He proposed allowing voters to overturn judicial decisions by ballot. If the spirit of Lochner were to prevail, he warned, “we should not only have a revolution, but it would be absolutely necessary to have a revolution.”
Such mutinous talk only heightened conservative Justices’ sense that the barbarians were storming the gate. “I must stay on the court in order to prevent the Bolsheviki from getting control,” Chief Justice William Howard Taft wrote to his brother, in 1929. As President, Taft had blocked Arizona and New Mexico’s joint bid for statehood because Arizona’s proposed constitution would have allowed voters to recall judges. As Chief Justice, he persuaded Congress to move the Court from its rooms within the Capitol to a dedicated marble edifice with bronze doors weighing six and a half tons apiece.
It was a “magnificent structure,” the columnist Howard Brubaker remarked upon its opening, with “fine big windows to throw the New Deal out of.” Indeed, after Democrats won the Presidency, the House, and the Senate in 1932, the largely Republican-appointed Supreme Court stood as a citadel of laissez-faire capitalism against the national zeal for economic controls.
The familiar understanding is that F.D.R. subdued the conservative Justices by threatening to enlarge the bench and swamp it with his appointees. This is a myth; they started to yield before he made that threat. And, in a way, the standoff reflected the judiciary’s growing authority. Unlike its nineteenth-century critics, F.D.R. had implicitly accepted horizontal review; his challenge had been to the Court’s orientation, not its powers. Once that orientation changed, the marble-ensconced Court was supremer than ever.
By the time F.D.R. died, in 1945, he had appointed seven of the Supreme Court’s nine Justices. This inaugurated a golden age of liberalism and a break with the Court’s theretofore conservative history. When Earl Warren presided, from 1953 to 1969, the Court helped make voting fairer, establish rights for criminal defendants, and dismantle Jim Crow. The Warren Court’s watershed decision of 1954, Brown v. Board of Education of Topeka, which rejected segregation in public schools, is revered with the same intensity that Dred Scott is reviled.
Brown was a moment of both moral clarity and jurisprudential mystification, Bowie and Renan maintain. The lawyers for the plaintiffs, including the future Supreme Court Justice Thurgood Marshall, had grounded their argument partly in a Reconstruction-era federal statute, the Ku Klux Klan Act. The case could be understood, then, as a straightforward matter of striking down state laws that violated a national one. It’s far from clear that the Court saw it this way, though; its unanimous opinion didn’t mention the Klan Act. Bowie and Renan lament the omission. Although the Court was, in their view, merely enforcing Congress’s will, it “gave the impression, whether intentionally or not, that it was acting alone, regardless of what Congress wanted.”
This is a crucial plank in Bowie and Renan’s argument. A Supreme Court lacking the power of horizontal review could still have issued the Brown decision. Most of the Warren Court’s admirable activism, they say, was in fact vertical review, targeting state and local statutes. They are correct. Of the twenty-four landmark Warren Court decisions listed by the legal website Justia, none overturned an act of Congress. If the Warren Justices had a bone to pick with legislators, it was with the state and local ones upholding Jim Crow.
To be sure, overturning a federal law is rare during any era of the Court. The Justices’ daily business involves resolving ambiguities, clarifying jurisdiction, harmonizing conflicting statutes, and adjudicating conflicts in special jurisdictions. And of the 1,514 laws that the Supreme Court struck down from its inception to mid-2017, only a hundred and eighty-two of them—twelve per cent—were federal. The Warren Court’s relative respect for federal laws was thus noticeable but not startling.
Although there haven’t been many federal invalidations, Bowie and Renan rightly observe that they account for some of the most regrettable decisions in Supreme Court history. In horizontal-review mode, the Court has struck down laws limiting slavery and child labor, establishing income taxes and minimum wages, and restricting corporations from tilting elections or firing workers for union activity. Horizontal-review success stories include invalidating the part of the Defense of Marriage Act defining marriage as exclusively between a man and a woman; few others come to mind. The triumphs are “dwarfed” by the “vastly larger” set of disasters, Bowie and Renan write.
The Warren Court had little need for horizontal review, Bowie and Renan believe, but it clung to that power nonetheless. A decision mandating school desegregation in Little Rock, Arkansas—signed by every Justice, for boldface emphasis—insisted that the Court’s supremacy over the other branches in interpreting the Constitution had been accepted since Marbury as “permanent and indispensable.” As history, this was ludicrous. The Warren Court, while making substantively democratic rulings, cemented a procedurally undemocratic arrangement.
Yet it was hard to mind back then. This was the heroic era of “12 Angry Men,” “Inherit the Wind,” and “To Kill a Mockingbird,” of principled men defending the law against racists and religious zealots. The Court seemed noble to progressives—maybe even cool. In 1970, Warren, recently retired, addressed a packed quad at the University of California, San Diego. The school had been roiled by protests, so when students unfurled a banner Warren’s supporters feared the worst. But the banner said “Right On, Big Earl!” and the crowd roared.
In gratifying the left, the Warren Court debilitated the long tradition of opposing judicial supremacy. Just how debilitated it was became clear in the deadlocked Presidential contest between George W. Bush and Al Gore. In a similarly close nineteenth-century election, between Rutherford B. Hayes and Samuel J. Tilden, Congress had taken charge and no one had “ever dreamed of trying to resolve it in litigation,” Larry D. Kramer notes. Yet, in 2000, the dispute went through the judiciary as a matter of course. After the Supreme Court decided for Bush, who’d lost the popular vote, Democrats acquiesced. “While I strongly disagree with the Court’s decision, I accept it,” Gore said, adding that the process had shown the “strength of American democracy.”
Late-twentieth-century politicians had grown comfortable with the Court’s authority. They could accept a view of politics as a turn-based game: the checks that they abhorred when they were in power, like horizontal review and the filibuster, became crucial when they were out. Counter-majoritarian arrangements insured that democracy didn’t devolve into two parties taking turns tyrannizing each other.
Democrats, with their signature concern for minority rights, had additional reasons to distrust straightforward majority rule. The legal theorist Lani Guinier argued in the nineteen-nineties that winner-take-all elections endangered Black individuals like her, who made up only ten per cent of voters. Thinking along the lines that John C. Calhoun once had, she considered alternative voting systems that could guard against “the tyranny of the majority.” Guinier’s more exotic ideas stirred controversy. (“Loony Lani,” right-wingers called her, among other things.) But she argued that minority protections made intuitive sense. She noted that her four-year-old son, Niko, had spontaneously proposed some when adjudicating which game a group of children should play.
That four-year-old, Nikolas Bowie, is now a Harvard law professor and in a different mood. His book with Daphna Renan vigorously defends majority rule against institutional impediments. The two authors cling to Congress, which they deem “more democratic than the Supreme Court.” For all its flaws, it “is our institution for translating the people’s power into enacted law.”
Bowie and Renan’s view fits a growing liberal discontent with the Court, no doubt stemming from Democrats’ recent failures to fill its seats. In principle, the Supreme Court supplies general drag, forcing whichever party is in power to contend with Justices appointed by previous Administrations. But the friction coefficient is now far greater in one direction. In the span of the Presidencies that yielded today’s Court, Republicans won the popular vote less than a third of the time but have appointed two-thirds of the current Justices.
In the first half of Joe Biden’s Presidency, Democrats controlled the White House and Congress yet faced a conservative Court, thanks partly to the Merrick Garland mishegoss. This was the exasperating moment when Bowie and Renan started publishing their critique of judicial supremacy and their demand to “reclaim the authority of Congress.” Biden called for reforms, too, in his final year, recommending that the Court’s Justices be limited to eighteen-year terms, staggered so that Presidents could appoint one every two years.
The Republican House Speaker, Mike Johnson, declared Biden’s proposal “dead on arrival.” Certainly, Biden’s planned announcement of his Court-reform scheme was drowned out by his less planned announcement, the same month, of his withdrawal from the 2024 Presidential race. At that point, Biden’s talk of mandatory retirement for aging officeholders hit awfully close to home.
Bowie and Renan want elected officials to reassert their authority over appointed Justices. Although the model they point to is Republicans in the eighteen-sixties, the most prominent case of this today is Israel. Its Supreme Court has rejected draft exemptions for ultra-Orthodox Jews and overturned a law legalizing settler homes built on private Palestinian land. That, in turn, has led Prime Minister Benjamin Netanyahu’s right-wing parliamentary majority to announce plans to overhaul the judiciary, including removing its horizontal-review power. (Unsurprisingly, the Supreme Court has struck down a law that would have constrained its ability to strike down laws.) Netanyahu’s allies present their ongoing judicial-reform campaign as a defense of the popular will.
Donald Trump shares Netanyahu’s impatience with meddling judges. Whereas his recent predecessors groused about the Supreme Court’s decisions yet acknowledged its larger usefulness, Trump, a YOLO President, is ready to napalm whatever obstructs his immediate interests. After the Court gave his birthright-citizenship executive order a skeptical hearing, he blasted his own appointees as “fools and lap dogs” and threatened to “PACK THE COURT!” Trump’s Vice-President, J. D. Vance, has warned of an “effort by the courts to quite literally overturn the will of the American people.” He’s admonished the Supreme Court to be “extremely deferential” to decisions “made by the people’s elected President.”
Trump and Vance worry that the Supreme Court will thwart executive actions. Although Congress doesn’t pass many laws these days, the White House has been a furious tempest of executive orders. And so the judicial battleground today isn’t between the Court and Congress but between the Court and the Presidency.
The Supreme Court’s self-granted power to declare executive actions unconstitutional hardly appears in Bowie and Renan’s history. But it’s hard to see how this power could be legitimate by their logic. If the Court is trammelling democracy when it overturns acts of Congress, isn’t it doing the same when it overrules a popularly elected President?
Bowie and Renan’s book, imploring politicians to defy the Court and obey the people, would have fit a Kamala Harris Administration perfectly. Trump’s reëlection, however, makes their “popular will versus injustice” framing harder to nod along with. Democrats could once take comfort in the notion that theirs was the popular side, with only the vagaries of the Electoral College and the iniquities of corporate campaign donations preventing them from permanently occupying the Oval Office. Yet in 2024 Trump, despite being significantly outspent, not only won the popular vote but did especially well with the working class. If the people had a will in that election, it was for deportations, tariffs, and cage matches on the South Lawn.
The Supreme Court has been a fitful friend to Trump in his second term, alternately enabling and impeding him. Much of its aid has come in unsigned rulings on the emergency docket—ostensibly temporary and non-precedent-setting judgments that nevertheless carry serious consequences. Horizontal review hasn’t yet seen much play. But, given that the Republicans now control both houses of Congress and the Presidency, curbing Trump might require firing that torpedo.
Bowie and Renan’s compelling history doesn’t lead one to expect much there. The Court has been persistently reactionary in its dealings with other branches, using horizontal review to protect enslavers from abolitionists, bosses from unions, and tycoons from tax collectors. Justice would have been better served, historically, by the Justices butting out.
Still, is now the time to desupremify the Court? Trump has been losing both support and inhibition. He’s likely to turn desperate as he finishes his second term, and he has threatened to seek a third. This is precisely the scenario that defenders of judicial supremacy have long warned about: Philip on a drunken rampage.
It is, as the grocers say, a pickle. Philip sober has been no friend to democracy. These days, though, he might be its best hope. ♦