I wanted to direct your attention to this podcast episode from Slate. It’s actually the first episode of a series Slate is doing on popular constitutionalism. (The page linked above is paywalled. But, I’m told, the ‘By the People’ pod series itself is not. So you should be able to find it on podcast platforms.) It brings together in a engaging and coherent way a number of themes we’ve been discussing over the last couple years about the problem of and the corruption of the U.S. Supreme Court. And it frames the question around a 20-year-old book on popular constitutionalism by Larry Kramer (The People Themselves: Popular Constitutionalism and Judicial Review).
The gist is basically this: judicial review goes back to Marbury v Madison and you can argue (how well is up for debate) that it was always implicit in the constitutional structure. But judicial supremacy — the idea that the Court (and inferior courts) have sole responsibility for interpreting the Constitution and in effect can’t be questioned — is very new. It is certainly new as a consensus across the political spectrum. Kramer and the episode (with Slate’s Dahlia Lithwick and Mark Joseph Stern) trace its origins to the quick succession of the Lochner Court of the late 19th and early 20th centuries (right-leaning, anti-labor rights and regulations) and the Warren Court of the 1950s and ’60s (left-leaning, pro-democratic process and individual rights). The American right — or the more conservative and reactionary elements of American politics — had always been most friendly to judicial supremacy. They got about as supremacist as possible under Lochner. And then you get the Warren Court, which suddenly and unprecedentedly makes the Court a vindicator of individual rights. The left decides judicial supremacy is pretty cool after all. And with that switch, suddenly you’ve got a right-left consensus in favor of judicial supremacy. Even then, though, Kramer argues that new mindset doesn’t really come fully to fruition until the failed nomination of Robert Bork. It’s only with Bork that the importance of Supreme Court justices — who they are, their backgrounds, viewpoints, prejudices — breaks through to the larger public.
There are some parts of the history I’d quibble with. (I think this downrates the unique characteristics of the conservative judicial moment as well the movement for legal professionalization in the late 19th century.) But big picture this is an accurate and illuminating way to understand how we got to the present moment. Once you get a judicial supremacy consensus, the whole fabric of U.S. politics becomes distorted. Every confirmation becomes life or death because we’re basically appointing a guardian council. We have Mitch McConnell type power plays. We need to get new justices on the Court by the time they’re in their late 20s if at all possible. The success of the Federalist Society and the conservative legal movement generally is the first sustained effort to pack the Supreme Court to achieve the kind of unbridled power we see today. The Warren Court was genuinely liberal in key ways. But that was partly fortuitous and far more something that grew organically out of the political culture of the New Deal and the early Cold War.
In any case, the salient point of the whole discussion is that until fairly recently it was believed that all the branches of the government — and critically, the people acting through those different branches — had an equal responsibility to judge what the Constitution says and what it requires. The Court can reject a law on constitutional grounds. But that doesn’t settle the matter. It doesn’t mean that’s what the Constitution says. It’s what the Court claims and they have certain powers to make good on those claims. But they don’t have unlimited powers, and the other branches have their own. The Congress says what it thinks is constitutional when it passes a law (or that should be what passing a law means). If the other branches think the Court is wrong there are checks and balances to push back on incorrect decisions — adding new justices, removing the Court’s jurisdiction over certain questions, yanking back the Court’s budget.
In the last decade and a half there’s been an interesting locution that often comes up in political and legislative debates. People or legislators will sometimes say, Well, we’re not sure if this is constitutional … or It’s probably not constitutional but we’ll pass it and see what SCOTUS says. Sort of like if you’re doctor recommends a new medication and you take it and do new lab work to see if it worked. Like the Court is the decider, not just in its own specific areas of power but as the decider across all of the federal and state governments. It’s a profound abdication of responsibility but you can see how it is a sort of echo of the acceptance of the doctrine of judicial supremacy.
As Kramer notes, all of these things that Congress can do to exert power over the Court are unambiguously constitutional remedies. But the essence of the judicial supremacy doctrine is that these are just not okay because there can’t be any checks on the absolute power of the Court — or, to use the standard formulation, that this is a danger to judicial independence. Kramer makes the key point that judicial independence is really about judges in their judicial role, deciding how trials are conducted, who’s guilty or innocent. We don’t want a president to be able to strong-arm a judge into making sure his enemies get convicted. That’s the heart of judicial independence and the rule of law. But judicial review is a policy function and in that context there must be checks on the Court’s power just like there needs to be, under our system, on every other locus of power — presidents, congress, states and bureaucracies.
Here is where this locks up with what we’ve been discussing so intently in the Editors’ Blog. We’re still beholden to this public mindset where, even after what we’ve seen in recent years, it shocks many people to imagine curbing or breaking the current Court’s power. Everything I’ve written about the Court going back four or five years has been to advance two points: first, curbing the Court’s power is not shocking. It’s normal and proper. Second, democracy in this country cannot survive with the current Court in place. So reform is both legitimate and essential. What I liked about this episode (and I would assume the rest of the series) is that way it packaged the history up in an accessible and clear way. Unchecked power is anathema to our whole system. When officeholders are corruptly abusing their power the other branches of the government not only can but must check them. Who decides what’s an abuse? What’s legitimate or not? The people, acting through the other branches.
There’s a lot to discuss here and we’ll get back to these topics in future posts. But I would like to add the states to this equation. The states are parties to the federal compact. They have high standing to interpret the federal constitution. We must keep this in mind as we battle for the future of democratic freedoms in this country. States are key bundles of sovereignty and executive authority which have a critical role today in defending democracy and the Constitution. Part of the uniqueness of this moment is that the presidency is acting in concert with the Court to create a new system of autocracy. They each have their own aims. But they overlap both ideologically and in partisan terms. That is what makes the separate sovereignty of the states, and the executive authority within them, so important as ramparts for democratic freedom.