If You Come at the King, You Best not Miss: The Uphill Battle for Supreme Court Reform

Critiques of judicial supremacy and proposals limiting the Supreme Court's power are common on the left side of the legal academy these days. For most of the last sixty years, similar calls to control the Court came from conservatives upset about the liberal decisions of the Warren and early Burger Courts. Even during the Rehnquist Court era, from 1986-2006, most scholars on the American left were willing to roll the dice on the Supreme Court largely due to scholars like Laurence Tribe, Erwin Chemerinsky, and Akhil Amar, among many others, who came of age in the shadow of the Warren Court. But with the Roberts Court erasing many of the most important liberal decisions of the last 60 years and instituting a Republican Party list of priorities on the country, serious institutional critiques of the Court now come almost exclusively from liberals and progressives. 

Given the political nature of constitutional law, this academic role reversal should not surprise anyone. We like to think that we live in special times when it comes to the Supreme Court, but we do not. Liberals in 1934 were as upset with the Court's blocking of New Deal programs and other interventions as people on the left are today, and no less so than conservatives reacting to cases such as Brown, Miranda, and Roe in the second half of the twentieth century.

Despite all of this scholarly commentary and political hand-wringing over the decades, judicial supremacy and Supreme Court overreaching continue unabated. Even with the obviously improper off-the-court behavior of Justices Thomas and Alito and the in-your-face hypocrisy of self-identified originalist justices consistently issuing decisions with little or no persuasive historical justifications, we are simply unable to meaningfully reform and rein in what is likely the most powerful Court in the history of the free world.

Into this quagmire enter two Harvard Law School Professors, Nikolas Bowie and Daphna Renan, and their new book, "Supremacy: How Rule by the Court Replaced Government by the People." Given their Harvard perch and the reach of social media, podcasts, and the internet generally, this book will get a lot of attention, much of it well-deserved. Supreme Court reform proposals are making it to the general public in new ways likely to broaden the audience for such ideas.

The authors' clearly-defined target, however, is not judicial power in general but what they call "horizontal judicial review." The authors propose, as did James Bradley Thayer and Oliver Wendell Holmes, Jr. before them, a clear distinction between the Supreme Court overturning federal statutes and the judicial authority to invalidate state laws. The latter is necessary to maintain the supremacy of federal law, while the former is a terrible evil damaging to democracy and the people's ability to govern themselves through Congressional elections.  I do agree with the authors that judicial review of state actions is likely more crucial to our constitutional system than review of federal laws.

The authors distinguish our current system of judicial supremacy from what they (and others) call "democratic constitutionalism." They argue that both as an historical matter and a policy imperative the Supreme Court should not have the final say over what the Constitution means and how it applies. That job should be reserved for the people acting through Congress (and maybe the President, though that part is unclear). I do not think their historical account on this point is persuasive, but neither they nor I are originalists so I will not press the point.

The authors take the reader through a long and consistent pattern of egregious Supreme Court behavior, starting with Dred Scott and continuing through present day. With the exception of a few years here and there, the Court consistently favors the rich and powerful over the poor and powerless, and white people over racial minorities. Others have, of course, told these stories before but few have done it so well. Especially poignant are the sections of the book detailing how the justices severely curtailed federal efforts during Reconstruction to address our racial sins and how the Court stopped progressives during the Lochner era from lessening our country's oversized gap between rich and poor. Their argument that judicial review over federal laws has done much more harm than good over the centuries is powerful, persuasive, accessible, and important.

I also applaud the authors' descriptive critique of the institution regardless of whether one generally agrees or disagrees with the Court's jurisprudence over the course of American history. Here is a poignant example: 

The United States stands alone among constitutional democracies in its extreme form of judicial supremacy, one that combines horizontal review with life tenure for federal judges and a nearly impossible to amend Constitution.... In many peer democracies ... courts possess no power to invalidate national laws without the legislature's explicit permission.

The authors argue that, when the justices overturn federal laws, they are "announcing that their understanding of what is constitutionally permissible is superior to that of literally everyone else, including the millions of people who elected [members of Congress] and the president who enacted the law." They maintain that this type of judicial overreaching "conflicts with the very idea of a democracy in which disputes are resolved not by one privileged group but by ongoing disagreements among members of a community with equal voice and decision authority." Their remedy is for the Court to completely opt out of judicial review of federal legislation either voluntarily or through federal laws requiring them to do so.

So far, so great. But at the center of this project are significant questions that make the book feel, to this long time critic of the Supreme Court, a somewhat lost opportunity.

First, the authors' distinction between judicial review of federal laws and judicial review of state laws leaves them with a major problem at the heart of their book which they try to solve in a way that simply does not work. If it is anti-democratic for unelected, life-tenured judges to overrule federal laws, what about overruling, say, 49 state laws in Roe v. Wade? Where the Constitution's text is unclear and the history contested, which it is in virtually all important (maybe even all litigated) cases, why delegate to a council of national judges the authority to have the final word on the Constitution's meaning rather than much more accountable town, city, and state legislatures (not to mention the people voting via state referenda)?

Yes, federal law is and needs to be supreme. But that fact begs the question who is best able to decide whether state statutes and practices actually conflict with imprecise (to say the least), constitutional limits. All of the pro-democracy arguments the authors employ to criticize horizontal judicial review also apply to vertical review. At the end of the book, the authors conclude that "there is no body of judges that can save democracy. It is up to us, the people, to govern ourselves."

Yes. But there is virtually no discussion in the book of the importance of federalism as a shield against tyranny. The authors are not unaware of this problem. Their solution, however, is quite odd. They suggest that many of the Court's important cases overturning state laws are not really constitutional cases but examples of the justices using federal statutes, such as Section 1983, otherwise known as the Ku Klux Klan Act, to overturn state laws with Congress's permission. They say that, "if a court enforces the Klan Act to enjoin an unconstitutional state law--as the Supreme Court did to end segregation in Brown or to legalize abortion in Roe, its judgment ... represents Congress' authority in enacting the statute, not simple judicial authority."

I found this descriptive account puzzling and assume others will also be surprised to learn that Brown and Roe were not constitutional decisions but statutory interpretation cases. This move creates several problems. 

First, it gets in the way of the overall narrative. The authors repeat this descriptive account several times, and every time they did, I just stopped and shook my head. Although it is true that the cause of action in Brown and Roe came from federal statutes, until this book it had been assumed by everyone that the violations were constitutional in nature (meaning Congress could not reverse the Court's decisions on the merits anymore than states could). 

Are the authors saying that Congress could, if it wanted to, effectively overturn the Court's constitutional decisions holding state laws unconstitutional by taking away the Court's jurisdiction or the cause of action against state officers authorized by Section 1983? Could Congress enact a federal statute expressly prohibiting the Court from striking down state laws that violate the freedom of the speech or impose cruel and unusual punishments? It is unclear if the authors mean that, so more clarity on these truly hard questions would have been helpful.

Maybe the authors are simply saying that we should reconceptualize the Court's past judicial review of state laws as deriving, not from Article III authority, but from federal statutes, which suggests Congress, not the Court, the legislature not the judiciary, is the source of vertical judicial review. It is true that seen through that lens, judicial supremacy is less of a problem for those who think its use is undemocratic. But the authors would then have to accept, as noted above, that Congress could expressly insulate states from being sued for any and all constitutional violations. The supremacy of federal constitutional law would be difficult to sustain under those conditions.

The authors are also strangely silent about the Court's role in reviewing presidential actions that may violate the Constitution. Do the justices need Congress's permission to do that as well? The answer is far from clear.

Finally, the authors spend virtually no time on the 4th-8th Amendments. This omission is important. If Congress enacted a law, say, allowing the Executive to imprison an alleged enemy combatant American citizen without a jury trial, the authors would have to concede that the justices could not overturn it. Or what about a federal torture law? Taking the Court completely out of the judicial review business for all federal laws raises serious issues the authors do not address. My intuition is that they would carve out some form of highly deferential judicial review of federal statutes that completely gut vital constitutional protections for criminal defendants, but the book never addresses that problem.

These questions are not meant to take away from the authors' stirring narratives and institutional critiques. But the book leaves open too many questions to directly hit its mark--judicial supremacy. What we really need are reforms removed from substantive disagreements with the Court's cases that the short term losers can accept as much as the short-term winners. 

At the end of the book, the authors talk about a series of reforms, such as requiring a unanimous vote of the justices to strike down federal laws or federal legislation stripping the Court of jurisdiction. I agree with many of these ideas. But until the American public sees the Court in a fundamentally different way, not because of disagreement with decisions, but as an institution defective in original design, the chances of success are slim. 

There is a lot to love about this book. But the authors' carve-out for vertical judicial review as well as the absence in the book of any serious discussion of presidential power or protections for criminal defendants make their project less clear than necessary to support their bold thesis. They shot at the king but only grazed him. That grazing is valuable but it is not likely to knock him down.

Given their prodigious talents and expertise, as well as their platform, I wish they had hit their target with a more fatal shot. Only from the ashes of a truly devastating and comprehensive critique of the nature of the institution will reforms emerge that might fundamentally transform the Court (non-court) into an authentic judicial body--one that has the potential to both foster democracy and provide some protection for our most fundamental rights without the negative consequences of our current system of judicial supremacy that the authors criticize so persuasively. 

by Eric Segall