Let’s be good lawyers and define our terms. What do you mean by judicial supremacy?
Daphna Renan: Judicial supremacy, for us, is the power asserted by the Supreme Court to invalidate or reject the constitutionality of an act of Congress. So, take a statute like the Voting Rights Act, that has been decided by multiple Congresses, signed into law by multiple presidents, to be a way of effectuating the 15th Amendment. When the Court gets to say, “Actually, we prefer that the 15th Amendment means something else, and therefore the Voting Rights Act is not a constitutional exercise of Congress’s power,” that is an exercise of judicial supremacy.
Nikolas Bowie: And the reason it’s supremacy is because once the Court does that, there is no other institution that can reject the Court’s interpretation. As far as judicial supremacists are concerned, once the Court weighs in, that’s what the Constitution means.
Now the alternative: democratic constitutionalism.
DR: Our goal is to move in the direction of a constitutionalism that allows interpretations of the Constitution to be made through federal statutes. It doesn’t need to be all or nothing; there are steps we can take in the direction of a more democratic constitutionalism. But the idea is that when you have a more democratic interpretation of the Constitution as reflected in a federal statute, that has power and force in the world, even if five judges have a different reading of the Constitution.
You document how throughout our history, lurking behind this debate over who should have more power is the suspicion that it’s just about outcomes. If the Supreme Court is doing something you like, you support the Court. If it’s not, you don’t. You quote Stephen Douglas saying in his debate against Abraham Lincoln, “Is every man in this land allowed to resist decisions he does not like, and only support those that meet his approval? What are important courts worth unless their decisions are binding on all good citizens?”
NB: To be clear, democratic constitutionalism is not anti-court. It is not a belief that court decisions should not be binding. It is not a belief that courts have no important role to play. It’s a belief in the rule of law. What it challenges is the idea that when the Court interprets the Constitution, that interpretation is supreme and is binding, and that other people, especially Congress, must accept that as the interpretation.
What the democratic constitutionalists were saying is, instead of treating Supreme Court opinions that way, treat federal statutes that way. Federal statutes are the best evidence of what the Constitution means, and we need courts to enforce those statutes for them to take effect.
When abolitionists were debating what to do about the Constitution, there was a group of them, led by Gerrit Smith and eventually joined by Frederick Douglass, that argued just because the Constitution has been interpreted by the Supreme Court and by Congress to be this pro-slavery document, that does not mean the Constitution needs to be interpreted that way forever. The Constitution is not this irredeemable pact with the devil, as some abolitionists believe, but instead was something that could be reinterpreted democratically.
You talk a lot in the book about how defenders of judicial supremacy have said it is necessary to protect minorities against tyrannical majorities, but that in practice, it has been deployed far more often to the contrary effect.
NB: I wouldn’t say it’s the opposite effect. It’s more like judicial supremacy does protect minorities from majorities. It just protects minorities that you might not be thinking about. You know, it’s not the racial minorities or Native Americans or immigrants; it’s the wealthy and property owners and corporations.
And so when the Court in Dred Scott deployed judicial supremacy to declare an act of Congress unconstitutional [the 1857 decision struck down the Missouri Compromise while denying citizenship to Black people], the goal there was to take this controversial issue out of the political process, in part because they were worried that they one day might lose. What the decision ended up defending was this principle of protect the minority. The minority is slave owners.
Speaking of slavery and its aftermath, you say at one point in the book that the history of judicial supremacy is closely intertwined with the history of white supremacy.
DR: [In the later 19th century], you have a Lost Cause movement that is gaining steam and influence, that sees the way to defend the South and to reinterpret the legacy of the Civil War as that it was not about slavery. It was about our constitutional traditions that defended white supremacy, and a kind of runaway, lawless Congress that, during Reconstruction, was abdicating this constitutional tradition.
NB: Sorry to interrupt, Daphna, but also, just to be clear here, these people are using “white supremacy” literally. Like, that is the phrase they are using. It is not our modern vocabulary applied to the past.
DR: And the way the narrative develops is, how we check this runaway Congress is we start to recognize the Court’s power to tell Congress no. And that’s the legacy of white supremacy that’s intertwined with judicial supremacy.
It also becomes a reaction to the rise of the labor movement. So we’ve thought about it as a double helix. There is this idea that what we need the courts to do as well is protect the property owners, the property classes, from democracy, and the workers’ rights, and maximum-hour laws, and income taxes that the labor movement is trying to push onto the political reality of democracy and of legislation. And sometimes these narratives are intertwined, so you have people writing about what is happening in the first multiracial legislatures in the South as basically, the Paris Commune has come to America. And they’re interweaving this threat of both multiracial power and a more labor-friendly politics.
In the book you are careful to distinguish between two different types of judicial review, vertical and horizontal. Explain them and why it’s so important to keep them distinct.
DR: The idea that is very familiar across so much of American history, but that we’ve really lost in our conversations about the Constitution today, is that the idea that courts should enforce federal authority against states — that’s vertical review — is not the same as a court rejecting an act of Congress — that’s horizontal review. So that’s the distinction that we recover and that we saw over and over again in the sources that we’re reading from this period.
Louis Boudin, a really famous labor lawyer and constitutional thinker in [the Progressive Era], is saying, look, these are fundamentally different questions — a horse of a different color, I think he says, to think about the Court’s power to enforce federal law against states, which you need in order to have federal authority, to have some kind of federal set of commitments that applies to everyone, and the Court’s power to set aside federal legislation.
One of the central arguments I took from your book is that Americans’ failure to understand this distinction between vertical and horizontal review is a big part of why judicial supremacy is accepted today as a sort of natural state.
NB: The big distinction here is between enforcing federal law versus defying federal law, and so that applies to states, but it also applies to the president. And so when the president issues an executive order that, for example, announces new tariffs or that ends birthright citizenship, a lot of these orders are violating federal statutes.
And so the argument of democratic constitutionalism is not, well, anything goes. It’s that federal statutes are the best interpretation of the Constitution. If you have, you know, ICE agents running rogue, or the president issuing these orders, or any other federal officers violating federal law, the role of courts in that context is to enforce the law against the people violating them.
DR: And when you look at the examples of courts standing up to the Trump administration, what is happening is the enforcement of a federal statute, whether it’s the Administrative Procedure Act that says you should put aside regulations that violate the Constitution, or the Emergency Powers Act that the court says, no, that doesn’t allow the president to invent the tariffs that he’s invented, or statutes that limit the deployment of the National Guard.
When courts have defied federal statutes, they have emboldened the presidency by lifting up some of the statutory constraints that for a long time were understood to check arbitrary and corrupt presidential government.
It occurs to me that so much of our national conversation around fixing this country centers on amending the Constitution, but what you’re saying is different. You’re saying the fix really comes through federal laws.
DR: Yeah, and it’s not that a federal statute is always going to get it right, right? There are going to be federal statutes, there have been many federal statutes in history, that we might look at and say, we think that’s a bad policy. And also, we think they got the Constitution wrong. The question is, what do you do with that? If we look at Supreme Court opinions like [Louisiana v.] Callais or Shelby County [v. Holder], and we say, we think they’ve misinterpreted the Reconstruction Amendments, then we need to basically wait for the Court to change through the arbitrary process that unfolds before the justices can reinterpret the Constitution, right?
But if you say, we think Congress got it wrong in this statute. We think that that’s a problematic reading of the Constitution. Then you need to organize and mobilize and vote different people into office to repeal that statute. So, it is a more democratic constitutionalism, not because Congress is always going to get it right, but because what happens when you think there is a bad law is that the people can mobilize and organize to change it.
NB: You know, so many people are approaching the question of solutions to the Supreme Court’s interpretations of the Constitution as not just a baseline, but really as a constricting force.
So it’s like, I guess we have to live in a country that tolerates billionaires dominating elections, and I guess we have to live in a country that tolerates a president that cannot be bound by law, and I guess we have to live in a country that tolerates an attorney general that can prosecute the president’s enemies, or, you know, Congress can’t stop the president from going to war. Every problem we’re seeing is really, really hard to address given the current Court’s interpretation of the Constitution.
But what the Reconstruction Congress shows us is you can have a really horrible interpretation of the Constitution by the Court and nevertheless conclude, I think they got it wrong. All of the things that we really need become more imaginable once you factor in that maybe the Court is interpreting the Constitution incorrectly.
That leads me into a question about Congress itself. One review of your book expresses the concern that now is not the right time to be promoting the importance of Congress. Maybe we need the Supreme Court now more than ever, right? What do you say to that?
NB: The current Congress is not great. It’s not doing the sorts of things I think many Americans would expect of Congress. And there are two responses to that problem. One is just to be candid about identifying why Congress is so broken today.
You know, we have a Congress that anticipated the problems of money in elections. It anticipated state legislatures’ desire to insulate themselves from being voted out of office. It anticipated presidents using too much power to start wars abroad. And all these laws have been struck down by the Court. So we have a current Congress that has basically gotten its entire arsenal taken away by the judiciary over the past 50 years with these really idiosyncratic and harmful interpretations of the Constitution.
I think what today is revealing is the world that judicial supremacy has left us is a world in which we have a powerless Congress and a super-powerful president, all under the supervision of a Court that can exercise its supervision whenever it feels like it.
But the second point about that is, suppose that we could agree on what kind of Congress we want to see going forward. So, we could achieve some sort of national consensus that the current Congress is messed up, but here are the kinds of reforms we would like. Achieving that kind of legislature, that better legislature, is frankly impossible so long as the Court has this monopoly over constitutional interpretation, because any deviation from what the Court defines as history and tradition is, you know, just going to get struck down on its face right after it leaves the gate.
DR: The other thing that I think is important, given the current moment, is that we’re right now at an extreme outer bound of judicial supremacy in the United States. So, it’s not an all-or-nothing decision to start to exercise some of that constitutional muscle to bring us back to a more democratic constitutionalism. Jesse, I know you and I have talked about this before, but things like supermajority rules, or what Niko and I in the book describe as a consensus rule, that’s a proposal that’s been advanced and defended by prominent voices across history as a way to limit the kind of finality that the Court today exercises, even for those who still want the Court to have some role in reviewing federal legislation.
Can you talk more about ways in which we might move away from judicial supremacy?
NB: So, the consensus rule that Daphna’s talking about was advanced by the author of the 14th Amendment. And the author of the 13th Amendment proposed his own solution, which was when the Court interprets the Constitution, its jurisdiction should not extend to political questions. So long as it’s up to the Court to determine what counts as a political question, that’s sort of a meaningless doctrine. But his point was Congress can determine what counts as a political question.
And so if you imagine, for example, a future Voting Rights Act, one that responds to Callais, but also includes, you know, an anti-gerrymandering position, what Congress can do is say, look, Court, you do not have the jurisdiction to second-guess the constitutionality of this law. No one can bring this up before you.
And those are all powers that Congress has wielded in a variety of contexts. None of these powers are, you know, we’re not making any of them up for the book. We’re just drawing on what Congress has done in the past.
