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.
