De-Supremify the Supreme Court with Niko Bowie and Daphna Renan

Do we have to accept the Supreme Court as the final arbiter of constitutional meaning? Legal scholars Niko Bowie and Daphne Renan say no! They join the podcast to talk about their new book, Supremacy: How Rule by the Court Replaced Government by the People, which argues against “judicial supremacy” and looks to America’s past to recover a more democratic constitutional tradition. Check out Supremacy here https://wwnorton.com/books/9781324092803 If you're not a 5-4 Premium member, you're not hearing every episode! To hear this episode ad-free and listen to Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5 to 4 is presented by Prologue Projects. This episode was produced by Allison Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:03Speaker 00

  Hey, everyone. This is Leon from Prolog Projects. On today's special episode of Five to Four, Peter, Rhiannon, and Michael are interviewing friends of the pod and Harvard Law professors Niko Bowie and Daphna Renan about their book, Supremacy: How Rule by the Court Replaced Government by the People. Now, you may have noticed a vibe shift going on politically when it comes to the Supreme Court. More and more politicians and legal analysts are admitting that something is really wrong, and remedies that were once considered radical, like court packing, are becoming more mainstream. Niko and Daphna have another idea for a remedy: letting Congress take back power from a court

• 0:45Speaker 00

  that has over 200 years established judicial supremacy as the law of the land. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:00Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have bankrupted our nation like a lesbian bar in Massachusetts. I'm Peter. I'm here with Michael.

• 1:10Michael Liroff?

  Hi, everybody.

• 1:11Peter Shamshiri?

  And Rhiannon.

• 1:12Speaker 03

  Hello.

• 1:13Michael Liroff?

  So I'm out of the loop on this again. Is the bar bankrupting Western Massachusetts? Or are people bankrupting the bar? What's going on?

• 1:21Peter Shamshiri?

  Great question. The Boston Globe dropped a story about a lesbian bar in Western Massachusetts, which is apparently, and I didn't know this, a hotspot of lesbian activity.

• 1:35Speaker 03

  A hotbed of radical woke thinking.

• 1:37Peter Shamshiri?

  I thought it was just a bunch of fucking hicks out there in Western Massachusetts. Now, this piece, I want to be clear, is basically a bad faith piece meant to gawk at everyone involved in that. And you have to keep that in mind. It is essentially reactionary propaganda.

• 1:56Michael Liroff?

  Look at these freaks.

• 1:58Speaker 03

  Yeah.

• 1:58Peter Shamshiri?

  That said, it is objectively funny. That's why it's such good propaganda. And the basic story is that there's a queer bar in Western Massachusetts, and they opened a couple of years ago as a masks mandatory bar, sort of pitching themselves as like, we take COVID seriously. And they're losing money. And so eventually, they realized if we want to make money, we need to like, open up one night, like a big night, to people who aren't wearing masks. So they put out an announcement saying, hey, from now on, Saturdays are masks optional. Big uproar. You're, you know, you're being ableist. You're throwing us under the bus, all that, all that.

• 2:40Peter Shamshiri?

  And then it like, in sort of classic lefty fashion, it devolved from there where like, they're doing like, community meetings. And there are like, bad faith lefties who are like-

• 2:52Speaker 03

  This is violence.

• 2:53Peter Shamshiri?

  Yes, everyone's saying this is violence. There's a bit where the owner of the bar is like, like, I'm $50,000-

• 3:00Michael Liroff?

  Right.

• 3:01Peter Shamshiri?

  -in debt, and like, the bar is collapsing. And then there's a response that's like, you're centering yourself as a white person, and it's racist.

• 3:11Speaker 03

  That's good.

• 3:12Michael Liroff?

  That's incredible.

• 3:13Speaker 03

  That's good.

• 3:13Peter Shamshiri?

  If I said to someone, like, I'm $50,000 in debt, like, for this thing that we're discussing right now, and they were like, you're centering yourself? Game over for you.

• 3:21Michael Liroff?

  Yeah. Damn right. As the owner of the bar who's in debt, I am absolutely centering myself.

• 3:27Speaker 03

  Yeah.

• 3:28Peter Shamshiri?

  Either we're in a physical fistfight, or I'm melting down on the spot, screaming something like, I am the center. I am the center.

• 3:38Michael Liroff?

  I mean, that is like, my first response is like, all sympathy to people who felt safe because of the masking rules. But you gotta drink there more? You gotta spend more money there? You gotta make it profitable for them? Or at least let them break even?

• 3:52Speaker 03

  Yeah.

• 3:52Peter Shamshiri?

  That's the lesbian bar drama, which, by the way, the right-wing media is running with. And is going to be the heart of the 2028 presidential campaign.

• 4:05Peter Shamshiri?

  Will you or will you not drone-strike the lesbian bar in Western Massachusetts? All right, we actually have a couple of guests coming on the pod today. A couple of Harvard Law professors, Niko Bowie and Daphna Renan.

• 4:21Speaker 03

  You said Harvard? Where is that?

• 4:24Peter Shamshiri?

  Harvard?

• 4:26Michael Liroff?

  In Eastern Massachusetts.

• 4:28Peter Shamshiri?

  Eastern Massachusetts. It's a small state, though. Can't be that far.

• 4:32Speaker 03

  Bro, we should have asked them.

• 4:33Peter Shamshiri?

  We should have asked them about the lesbian bar.

• 4:36Speaker 03

  But instead, we were talking about judicial supremacy.

• 4:40Peter Shamshiri?

  Yeah. They wrote a book about judicial supremacy, the idea that the courts get to decide what the Constitution means, which, believe it or not, is not something that you have to believe. It's not mandatory to believe that courts decide what the Constitution means.

• 4:55Speaker 03

  Total construct.

• 4:57Peter Shamshiri?

  They talk about the origin of the idea and how it has sort of taken on this anti-democratic form in our government. And so, yeah, we wanted to talk to them because they're pitching a different understanding of the Constitution than I think 99% of the population has. And it's an interesting one at a time when I think we need to be, both on the left and as a broad society, sort of just rethinking the relationship between the people, the courts, Congress, the president, and the Constitution.

• 5:28Speaker 03

  Yeah, yeah. And the role that the federal judiciary plays in democracy is this construct and the way we've all now accepted it for decades and decades and decades. Is that actually democratic? Is that actually reflective of what the founders were thinking and talking about? You know?

• 5:44Michael Liroff?

  And is it healthy?

• 5:46Speaker 03

  Exactly.

• 5:47Peter Shamshiri?

  Yeah. All right, without further ado, here is our interview with Niko Bowie and Daphna Renan. Say hi, guys. Say hi.

• 5:54Speaker 04

  Hello.

• 5:55Speaker 03

  Thanks for having us.

• 5:57Peter Shamshiri?

  You two are professors at Harvard Law School. Obviously, it's our position that there should never be more than one professor from Harvard Law in one place. But until there's a statute, I guess we're just gonna do this.

• 6:15Michael Liroff?

  That's right.

• 6:16Peter Shamshiri?

  We're rule of law people at the end of the day.

• 6:18Speaker 04

  Yeah, norms are nothing.

• 6:20Speaker 03

  Yeah.

• 6:22Peter Shamshiri?

  You guys have a book, Supremacy: How Rule by the Court Replaced Government by the People, which I think is out now, right? As this drops, it is out. And it's a book about judicial supremacy and perhaps other types of supremacy, if I'm reading between the lines correctly there. And I think maybe it makes sense for one or both of you to explain to our audience what judicial supremacy is at a high level.

• 6:50Speaker 04

  Sure. So judicial supremacy is just the idea that when the Supreme Court interprets the Constitution, that's what the Constitution means. And so even if Congress passes a law saying, we think the 15th Amendment empowers us to pass the Voting Rights Act, if five justices on the court say, actually, the 15th Amendment means something totally different, no, you're wrong, then we have to live with that until the Constitution is amended or the court changes its own mind.

• 7:17Peter Shamshiri?

  I think it's probably news to a lot of our listeners that there are people who question this framework. This is sort of how you come to understand the court's role, that it is the arbiter of what is constitutional and what is not. It's the arbiter of the meaning of federal statutes, et cetera. It is something that is historically somewhat novel. And you outline the origins of it and the coming of age of judicial supremacy in an interesting way. Because I think a lot of defenders of the idea argue that it serves as a way to protect the little guy, to protect the rights of minorities. You know, if a law is passed that might infringe upon someone's rights,

• 8:01Peter Shamshiri?

  a court steps in and says, no, you can't do that. That's unconstitutional. That violates the Constitution or a statute or whatever. But you describe judicial supremacy in the book as something that comes of age as a tool for enforcing white supremacy. You have Dred Scott, Reconstruction, and all throughout this period, the idea of judicial supremacy is being sort of debated and utilized by reactionaries, very expressly as a tool of white supremacy. And not white supremacy in like, an abstract 2026 kind of way, but in the sense that there were people arguing for it expressly in the 1850s, for example.

• 8:44Peter Shamshiri?

  So could you walk us through a sort of short version of that history where the debate about judicial supremacy is happening sort of at the same time as the debate around Dred Scott and slavery?

• 8:56Speaker 05

  Yeah, so the first time that the Supreme Court rejects the constitutional judgment reflected in a federal statute in a question of great consequence is Dred Scott, the 1857 case where the court basically says federal statutes limiting the spread of slavery in federal territory, like the Missouri Compromise, are unconstitutional in our view because they interfere with the property rights of enslavers. And this is really the moment where the court, for the first time, rejects an express judgment of Congress about what the Constitution allows it to do with its legislative authority. And the reaction to

• 9:36Speaker 05

  that among abolitionists and anti-slavery Republicans is not, okay, well, the court has said it, so that's the final word, and now we all need to accept that the Constitution doesn't allow Congress to limit the spread of slavery. It's organizing and voting and electing members of Congress that pass federal laws that, notwithstanding Dred Scott, limit the spread of slavery, extend birthright citizenship to Black Americans, which was the other crucial aspect of the Dred Scott holding, was a rejection of that, and say it's not just members of Congress's ability, it's their responsibility, it's their duty

• 10:17Speaker 05

  to give meaning to the Constitution and to reject the interpretations of the Constitution from the Supreme Court that interfere with the vision of who we want our country to be and what we understand the Constitution to stand for. There's a party that kind of comes into being on this message, that it would just defy self-government by the people to hand this power over to the court. And it's really instrumental in the way abolitionists are thinking about their relationship with the Constitution, because there's a debate within abolitionism at the time of, is the Constitution what the justices say it is? And if it is, then maybe we shouldn't vote, maybe we shouldn't participate in this project

• 11:00Speaker 05

  that's just bankrupt to the core. Or can we, through electing members of Congress that adopt different laws, change the meaning of the Constitution? And it's abolitionists like Garrett Smith and then Frederick Douglass that embrace this more democratic constitutionalist vision and that we argue are really the foundation of this tradition of understanding that members of Congress, through federal statutes, can give binding meaning to the Constitution.

• 11:27Michael Liroff?

  I'm glad you mentioned democratic constitutionalism. I've read some academic works that pose the alternative to judicial supremacy as something they call departmentalism, the idea that each department or branch of government is sort of in charge of interpreting the Constitution for itself. The president interprets the Constitution, and the executive branch follows him, the Supreme Court interprets the Constitution, and the lower courts follow that, Congress interprets the Constitution for itself. That's not really what you guys offer. You offer, as the alternative to judicial supremacy, this idea of democratic constitutionalism. So could you maybe explain to our listeners what that is?

• 12:06Speaker 04

  Yeah, you're right. So it's not departmentalism. It's not this idea that everyone gets to pick what their Constitution means for them, let a thousand constitutions bloom. But instead, if you're trying to figure out, what does the Constitution mean, there should be some democratic mechanism for sitting at the top of the hierarchy that everyone else follows until it's changed. And for judicial supremacists, the top of the hierarchy is a Supreme Court opinion. And so what that means is, if you're some random judge, and you have a case before you, and you think the Constitution means the government can do that, but the Supreme

• 12:47Speaker 04

  Court in opinion has said the government can't, then you kind of have to let your own interpretation go. You have to defer to the Supreme Court's opinion. That's what judicial supremacy calls for. And the tradition that we are talking about in the book is, instead of a Supreme Court opinion, put a federal statute up there. And this is actually a pretty old tradition. This is the tradition that, in theory, Americans inherited from Great Britain, because in the UK, an act of Parliament is the best interpretation of what the British Constitution means, which is not to say that every time Parliament does something, it's good, or that every time Parliament does something, it's constitutional.

• 13:31Speaker 04

  But in the UK, there's no other institution that has the power to, you know, basically defy this national law. If you don't like the national law, you have to elect a new Parliament and change what that law means. Courts can't just defy national law. So here, the tradition we're talking about is analogous. It's saying that the real strength of federal statutes, as far as the people who we describe believe, is they can be wrong, but they can be changed. You can elect a different Congress to change what previous statutes mean. And for abolitionists, that was key, because if you think of like, what

• 14:13Speaker 04

  was the typical abolitionist doing in the 1850s? Losing. You know, like, Congress was passing laws, like the Fugitive Slave Act, the Supreme Court is interpreting the Constitution to say Congress has a duty to round up fugitives from slavery. The president was going around enforcing that. So it's not as though abolitionists were victorious, but what I think gave someone like Frederick Douglass hope was the sense that if we agitate and rally public opinion enough, even though we are losing a lot, if we change public opinion, we can start to win. And once we get enough people in Congress who agree with us, Congress has

• 14:52Speaker 04

  that power by statute to reverse these prior precedents that are pro-slavery and to replace them with an interpretation that's anti-slavery.

• 15:02Peter Shamshiri?

  Maybe that leads into a somewhat obvious, if you're a nerd, question. And I think this is like, this has come up a lot in the context of discussions about court reform, for example. But Congress is currently very dysfunctional, not passing a ton of laws. Perhaps the Republican Party is enthralled to an ideological movement that doesn't really embrace the power of Congress. And that sort of poses the problem for court reformers, and maybe, you know, you could argue for this vision of the Constitution, because it does seem to require an active Congress, or at least it would benefit from an active

• 15:44Peter Shamshiri?

  Congress. I think you could imagine a world where the court and Congress are in constant conversation, right? The court is saying, here's what this federal statute means. Congress says, no, we don't really think so. Actually, you got that a little bit wrong. You know, they pass a law addressing it. And you could see that dynamic being very functional. But without that dynamic, is this functional? I mean, you know, are we sort of saying, well, it would be nice if Congress was more active? Or would this sort of framework, in your mind, spur Congress to action, right? It sort of encourages them to be more active than they actually are by giving them a power they previously didn't really have.

• 16:23Speaker 05

  Yeah. So one thing we're saying is that the Congress we have today, with all of its many dysfunctions, is the product of judicial supremacy. So if you think about the laws across history that Congress tried to enact that would have eliminated big money's stark influence on our elections, making our government more representative and addressing discrimination in the franchise, giving Congress tools to respond to a runaway president, so checking executive overreach through things like legislative veto that would have allowed Congress to reject how the president uses war powers authority or emergency authorities. These are all things that Congress enacted and that the court invalidated. The court

• 17:07Speaker 05

  rejected those federal statutes, said we can't have those federal statutes structure who Congress is and what kind of power Congress has. So our Congress today is the product of that judicial supremacy. Our Congress today is also the product of kind of a learned helplessness vis a vis the court, because the court has aggressively restricted what kind of legislative authority it will recognize as permissible under the Constitution. And so a Congress that sees the court as giving the final say on what the parameters of Congress's legislative authority can look like is a much, much more cabined or restrained Congress in terms of what it can try to achieve, whether it's addressing racial and partisan gerrymandering,

• 17:51Speaker 05

  whether it's addressing reproductive choice, whether it's addressing the climate crisis. The last piece I'll offer is that it's not all or nothing. We are now at an extreme outer bound of what judicial supremacy can look like in the United States. And so there are ways that we can limit the court's final say over the Constitution, that for those who are kind of like uneasy, given the state of our current politics, eliminating entirely this judicial role in horizontal review, we can limit it, we can restrain it. So one idea that was on the table during Reconstruction and across US history and remains available to us today is to pass a statute that says, look, there should be some consensus among

• 18:33Speaker 05

  the justices, whether it's seven justices, eight justices, that say there's no plausible way to defend the constitutionality of this statute before you can invalidate a federal law. It shouldn't be that a thin majority on controversial theories of the Constitution can reject what sometimes a generation has organized and voted to enact into a federal statute.

• 18:56Michael Liroff?

  So I want to hit on a distinction you guys make in the book that I think is important, because I think, listening to this, you might wonder, well, where does that leave judicial review at all? But you make a sharp distinction between what you call horizontal review and vertical review. And maybe you could talk a little bit about where that comes from, what that is, and why it's an important distinction.

• 19:19Speaker 05

  Yeah, great. So horizontal review is the idea that we've been talking about, that the courts claimed power to reject the constitutional judgment reflected in an act of Congress. And that is nowhere in the Constitution. It was hugely debated from the founding. And we trace voices throughout history that have argued against it in the United States. Vertical review is right there in the Constitution. It says our federal laws are supreme, and so they need to be enforced against states that would defy these federal commitments. And sometimes it takes judges to enforce those federal commitments against states. And in this reconstruction period that we've been talking about,

• 19:59Speaker 05

  one thing that you see is Congress is enacting laws to protect its own legislation from the court, so preventing the court from second guessing the Reconstruction Acts that are extending black suffrage to the South for the first time. And Congress is stripping the court's jurisdiction to reject the constitutionality of that act. And at the same time, Congress is also enacting laws that make it possible for courts to enforce these new federal guarantees of equal protection against states. And one of those laws is the Klan Act of 1871, really important statute, that a piece of it is codified today in Section 1983, so we know it as Section 1983.

• 20:40Speaker 05

  And this is the federal statute that says, courts, make sure those acting under color of state law are not violating constitutional rights, federal constitutional rights. That's how we have federal constitutional rights have meaning in a system of state actors. And that's the statute that's at the core of cases like Brown versus Board of Education, where the court says, okay, under Section 1983, we have the authority to say, states in the South, segregation in schools is unconstitutional. It's a violation of equal protection. So that's vertical review. And importantly, it's vertical review by grace of Congress. It's happening pursuant to federal statutes like the Klan Act.

• 21:18Speaker 03

  You already mentioned Brown v. Board, which is what I was going to bring up. It's an example of vertical review, which in your argument is a system in which the Supreme Court is interpreting the Constitution in a democratic constitutionalist method. It's a good example of. Now, that war in court, right? That hands down Brown v. Board and other really important landmark Supreme Court decisions that we look back on as like the era of a great progressive liberal Supreme Court. That court, though, is criticized as an activist court. And it's argued by reactionaries, conservatives, that that court actually is an example of a court engaging in judicial supremacy, judicial activism,

• 22:01Speaker 03

  a court sort of like coming in and meddling with political affairs when the court actually should sort of act with restraint, is the conservative bad faith argument. But that is the argument. And you talk about how, no, that war in court, Brown v. Board is one example, but there are other cases as well. That court was actually engaging in democratic constitutionalism. Can you give some other examples here of what you're talking about? That vertical review and how the court was engaging in that way, which is actually an example of judicial restraint that we don't see today?

• 22:34Speaker 04

  Yeah, so the really short version of the argument in the book is that courts should enforce federal law. They should not defy federal law. That's basically it. And for the last 60 or so years, when people have thought or argued or debated about judicial review or the court, they tend to say, like, here we have on one side these unelected judges, and on the other side, these elected state legislators, or elected president, or elected Congress, or elected anybody. And so it's a debate about like popular majorities versus the court, and how there are some times where you don't trust majorities. Anyway, that's the framework for the debate. It's like courts versus elected people.

• 23:19Speaker 04

  But one thing that the folks who we found in the archives and put in the book, their stories that they argued is, when a court enforces a federal law, it might strike down a state law. You know, so if like Congress passes a Civil Rights Act or something that says no segregation, and then some state starts segregating, if a court comes in and strikes down that state law, it's court versus elected people.

• 23:46Speaker 03

  Sure, yeah.

• 23:47Speaker 04

  But taking that one step more broadly, it's actually Congress versus a state. It's about federal authority or congressional authority. And so that's really what vertical review is about, is Congress at times has told courts, here's your job. Your job is to start enforcing these statutes. And one of those statutes, like the Klan Act, gives courts a lot of discretion. And it says, stop states from violating the Constitution. And so the Supreme Court has used that in Brown, it used that in Roe versus Wade, in Obergefell versus Hodges, in all kinds of cases to strike down state laws, much in the same way that Congress passed the Voting Rights Act,

• 24:30Speaker 04

  and the courts enforce, that also strikes down state laws. But I think the key insight from thinking of judicial power this way is simply because a court is enforcing this law does not mean the court gets it right. It's not as though whenever a court enforces a federal law or engages in vertical review, the outcome is correct. Courts also issued cases like Lochner or Cedar Point or Dobbs, cases that I personally would object to. But the key insight is because the courts are doing this by virtue of Congress, because the court is subject to federal law, Congress can reverse the court.

• 25:09Speaker 04

  And so part of the argument here is that when a court issues a decision that people object to, it's possible to override that decision, not by waiting for justices to die and get replaced, but by passing a new federal statute, one that says, court in Dobbs, you got this wrong. Or court in, you know, these gun cases, you know, you're letting too many people die. That's not what the Second Amendment means.

• 25:34Speaker 03

  What's really compelling about the history of this, like that there was a liberal embrace of judicial supremacy too. And so when you're talking about, like, part of the problem of a dysfunctional Congress is judicial supremacy. But when we're tracking the history of it, I think what y'all do so powerfully is highlight this debate between vertical and horizontal review, judicial supremacy versus what you guys call democratic constitutionalism. This debate was happening, in fact, at the Constitutional Convention. It was happening before the Civil War. It was certainly happening during Reconstruction, and then, of course, Second Reconstruction, and that there were people fighting back, like you say, taking up this debate. But what you see after Second Reconstruction,

• 26:16Speaker 03

  you guys outline, is actually a liberal embrace of judicial supremacy, that liberals started to say, well, sometimes judicial supremacy works for us. Like, we get the wins, and it's just that, you know, sometimes conservative justices are like put on the Supreme Court, and they'll get the wins sometimes, but we get the wins the other times, this kind of thing. I wonder if you guys can talk about like that liberal embrace and how there was sort of acceptance across the board that gets us to an ineffective Congress and a Supreme Court that is like reining over all of this?

• 26:51Speaker 04

  Yeah, so, you know, as you point out, through the 20th century, lots of people embrace democratic constitutionalism. And one example is like the Voting Rights Act. So before the Voting Rights Act, when the Supreme Court was interpreting the 15th Amendment, which prohibits abridging the right to vote because of race, the court looked at things like literacy tests and said, we don't see race here. We just see an attempt to protect an educated franchise. And therefore, these literacy tests across the South are constitutional. And when Congress passed the Voting Rights Act, which was called an act to enforce the 15th Amendment, Congress said, no, you know, we think literacy tests are unconstitutional. And at the time, the court was like, oh, you know, great, we support what you're doing here.

• 27:35Speaker 04

  We don't think Congress's only role here is to just enforce our own judgments. But the court also expressed some skepticism and said, you know, but we are a little worried about Congress, you know, taking away rights. We don't want Congress to do that. And a generation later, after the court had issued decisions like Roe versus Wade, in 1981, Ronald Reagan took office, a pretty conservative Congress took office, and one of Senator Jesse Helms of North Carolina, a sort of leader of the conservative movement, one of his goals was, let's get rid of Roe. So let's pass a federal statute. Let's do what they did with the Voting Rights Act, which I hate, and just apply it to, you know, cases I don't like.

• 28:17Speaker 04

  And for some people who opposed Helms's bill, you know, they fought it on policy grounds. And they said, that would be a bad idea, bad law, let's not do it. But a lot of people, particularly law professors and other people who've been thinking about these questions, they argued that Congress should not be able to reverse Roe, that when the court weighs in, that Congress is really limited to what the court says it can do. And they argued that the court has allowed Congress to reverse the court in some instances, like the Voting Rights Act, but not every instance, like with Roe. And so it's that kind of, as you're putting it, like, when the court is with us, let's not get in the way.

• 29:02Speaker 04

  And that just turned out, as far as Roe is concerned, a really bad strategic error. And they defeated this bill, but a decade later, when it looked like the court might reverse Roe, because conservatives, during that 1981, 1982 debate, founded the Federalist Society, focused on getting justices on the court, you know, really embraced like, okay, if we're all in favor of judicial supremacy, let's get the one institution that matters. And there was a debate in the early 1990s to codify Roe on the theory that the conservative court might reverse it. But codifying Roe would require supporters of reproductive freedom

• 29:45Speaker 04

  to make compromises with other legislators. You know, one of the big issues was whether minors would have to receive parental notification before getting an abortion. And after Bill Clinton appointed Ruth Bader Ginsburg to the Supreme Court, and it looked like there was this durable majority on the court in favor of Roe, the support for a federal statute really collapsed, because supporters of Roe said, we don't have to do anything. We don't have to protect these rights. The court's going to protect them. Ruth Bader Ginsburg is on the court. There's like at least a 6-3 majority in favor of this. We're fine. And that was just another strategic error that we think really is a consequence of believing that the important constitutional rights someone cares about

• 30:30Speaker 04

  can be protected by just leaving it in the hands of the least accountable people in the federal government.

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• 33:56Peter Shamshiri?

  How much of a shift away from judicial supremacy is just vibe shift? As opposed to, we're doing something structural here, you know, laws are passed, you know, men with guns are sent outside one first or whatever. How much of this is just, everyone needs to be thinking about this differently? Everyone in Congress or some significant plurality of Congress people need to be stepping up and saying, this is how we understand the Constitution? What's the percentage vibe shift and percentage structural change?

• 34:28Speaker 04

  To be honest, it's like 100% vibes, so.

• 34:32Speaker 03

  It is anyway, right? Like.

• 34:35Peter Shamshiri?

  Our position is that everything is.

• 34:36Speaker 04

  Yeah. I mean, just to be clear about it, like, it's not as though the Constitution says anything about the court's power here. The Constitution says nothing, but it does give Congress explicit authority to regulate the courts. And there is no legal prohibition against Congress regulating the court. There's no constitutional prohibition. So it really comes down to sort of voter expectations and members of Congress's expectations about who is in charge here. And one way to think about it is imagine that a future Congress passes a statute that says the justices can't take bribes. Like bribes are now illegal if you're a Supreme Court justice.

• 35:21Speaker 04

  No, you know, airplanes, no vacation RVs, whatever. And the court looks at that and five justices say, no, I'm sorry, we have a constitutional right to take bribes. I think for a lot of people listening, what happens next is kind of self-evident. It's like, oh, I guess we can't ban the justices from taking bribes. And the position of our book and all the people in it are like, no, that's wrong.

• 35:47Speaker 03

  Right.

• 35:48Speaker 04

  You know, backwards.

• 35:49Speaker 03

  We don't have to accept that.

• 35:50Speaker 04

  Who are they? Who are they to resist this anti-bribe law? Like, what are they gonna do? Start taking bribes against the law? No. And so, over the years, Congress has used a ton of different tools in order to ensure that the justices respect federal law. Those tools include Congress has changed the number of justices. Congress has changed the kinds of cases the court is allowed to hear. Congress has changed when the court is allowed to issue things like injunctions. During the labor movement, when courts were going around just breaking up every strike they could see, Congress passed a law saying, no more injunctions during labor strikes unless you meet these criteria that we outline.

• 36:32Speaker 04

  And pretty much everything about the court is subject to federal law, including where it sits, whether it can pay for air conditioning, how many clerks they have, when they can go on vacation, you know, just everything, every single thing they can do.

• 36:49Peter Shamshiri?

  I know you're only implying this, but our favorite types of court reforms are the ammiseration of the Supreme Court-style reforms. Yeah.

• 37:00Speaker 04

  Yeah, and I think the point to just raise them is that the justices did not just like descend from on high and like pop out of Zeus's head or whatever and.

• 37:11Peter Shamshiri?

  Literally from on low, from the basement.

• 37:13Speaker 04

  Yeah, from the basement of Congress. Congress gave them their building. And so to the extent that we as voters or members of Congress as legislators see the court as this danger to constitutional democracy rather than as a guardian, we have lots of members from the past, like Roscoe Conkling is like, it is our duty to stop them. It is our duty to hold those justices accountable to our view of what the Constitution means, not the other way around.

• 37:40Peter Shamshiri?

  One thing that sort of jumped out to me about your narrative about Dred Scott and the early days of the debates about judicial supremacy is that if you look at the Lincoln-Douglas debates, where Lincoln is sort of taking the position that, of course, the court can't do this. Of course, the court can resolve the issue vis-à-vis Dred Scott, perhaps, but does not have the power to make a considerably broader ruling than that that affects the entire country. You look at that debate in isolation and you could see Lincoln as being kind of incredulous, like, what are you talking about, right? Of course, if it hadn't been framed as sort of essential to our constitutional structure, this feels ridiculous that a small handful of judges can just kind of snap their fingers

• 38:22Peter Shamshiri?

  and resolve massive political questions that are upending the country.

• 38:27Speaker 03

  To your point about Lincoln-Douglas, there's these scraps of notes from Lincoln where he, as the Dred Scott decision is kind of working its way through the courts, he's saying like, what would it actually mean for our governing creed to be, whatever the Supreme Court decides settles this question of slavery? And he's saying, we'd have to accept this final authority of the Supreme Court, not just with respect to slavery, but with respect to every constitutional question that we as a country vigorously debate. And you can kind of like feel his incredulousness in this note of like, how could that be consistent with self-government? And in the Lincoln-Douglas debates, he's turning to Stephen Douglas and he's saying,

• 39:10Speaker 03

  this man is not defending slavery to you as moral. He's basically saying thus saith the Lord. That's what Lincoln says. Like, he's treating the court as kind of as thus saith the Lord. And if you have that attitude, then whatever the court says next, that will be the same response. And Lincoln is saying, that cannot be a constitutional democracy. That is like antithetical to who we are as a democratic republic. You know, something I was really struck with reading this book was you both talk a lot about organizers and communities, certain sectors, let's say, contingents, who are advocating

• 39:51Speaker 03

  over the course of American history for a different relationship between the Supreme Court, between the federal judiciary, and democracy, essentially. And what I think I walked away with was, there's like a little bit of sadness, I feel, at judicial supremacy and what it's done to like political creativity. As we've said, everybody just thinks like, I guess this is what the Supreme Court does, and I guess they can just do this with laws, and I guess they just act this way and we just all have to accept it. And so what I like about the book, we get questions all the time about, yeah, like the Supreme Court sucks, it's so terrible, but what am I supposed to do about it?

• 40:33Speaker 03

  What can I do just as a regular person or just organizing in my community? What should I be telling my elected representatives who don't seem to care about the Supreme Court at all? And so what do you say about like next steps for the common person that like cares about this and how we can actually like reintroduce creativity into the branches of government and how they orient to one another?

• 40:57Speaker 05

  Yeah, what you're describing is exactly what we saw in the materials that we looked at when you had a more democratic constitutionalism and members of Congress thinking that, look, we through this statute should embody an understanding of the Constitution that we think is right and just and moral and not just accurate on the originalist terms of the Supreme Court or whatever the governing ideology of the current Supreme Court. It is a much richer and more multifaceted way to talk about what the Constitution should mean and what obligations government has under it. And we saw that in the debates for the Civil Rights Act of 1875, when members of Congress are saying, we need to discuss

• 41:42Speaker 05

  what discrimination means and what protections against it require in the broadest plane of like, human rights and understand the Reconstruction Amendments as a responsibility to Congress to do just that. So it's exactly that kind of constitutional creativity and responsibility that we think is possible in a democratic constitutionalist structure that we've really lost under judicial supremacy. And in terms of what people can do, I think as we move into the midterms and coming out of the midterms and the coming Congress, every law that we think Congress should enact, whether it's a new Voting Rights Act, whether it's protections for the climate crisis or limiting the role of dark money

• 42:26Speaker 05

  in elections, for all of these incredibly important substantive moves forward as a democracy to stick, we also need to limit the control, the kind of chokehold that the court has over constitutional understandings. And so we can pair in urging members of Congress to pass those kinds of laws, also embedding in those laws limits on the court's authority to second guess Congress's constitutional judgment. And again, it doesn't need to be all or nothing. It can look like a super majority or a consensus rule that says you need, you know, seven or eight justices to agree that there's no plausible understanding of the Constitution that would say the statute is legitimate before the court can invalidate it. That's a kind of shorter measure than saying the court can't review it at all.

• 43:11Speaker 05

  But to see the two as kind of one and the same, that we need to advance a substantive agenda and that substantive agenda has to bring with it, limiting the court's power over the final say on what the Constitution can be.

• 43:25Speaker 03

  Yeah, yeah. And I think that just gets to like, the theory, the thesis of our podcast, right? Which is like, politics are a field of contention. We have to see the law, including our legal institutions, as politics and therefore in the field of contention as well, including like, the way the institutions interact with each other and all of us, you know? Okay, is there anything, like, either one of you, anything we didn't get to? Is there something you want to say about the book? Anything you want listeners of this episode to kind of like, walk away with?

• 43:56Speaker 04

  I mean, I think that the main thing that we hope listeners of your podcast, I think they already do come away with it, but the readers of the book come away with is just, like, the Constitution does not belong to them.

• 44:07Speaker 03

  Mm-hmm.

• 44:08Speaker 04

  You know, like, I feel like as someone who teaches constitutional law, I'm constantly trying to rationalize these views of the Constitution that I would just never reach on my own, even after thinking about it for a long time.

• 44:23Speaker 03

  Yeah.

• 44:24Speaker 04

  And, and that's just not how constitutional self-government works. It's not the kind of thing that you can outsource. And embracing our own ability to interpret the Constitution does not guarantee good interpretations.

• 44:40Speaker 03

  Yes.

• 44:41Speaker 04

  It does not mean we will always win. It does not mean Congress will always do what we like. You know, the current Congress, I do not want them to pass more laws because I don't like the kinds of laws they're passing. But it, I think, does mean a respect for democracy as an idea and the ability of all of us to rally our neighbors, you know, to organize our opponents, to really try to persuade people that our understanding of the Constitution is the right one. And that's what democracy is supposed to be about. And I don't think it matters whether someone says we're a republic or a democracy. Either way, it's based on self-government and what we currently have is not that.

• 45:22Michael Liroff?

  Right. That's a great thing to wrap on.

• 45:25Speaker 05

  Thank you both so much.

• 45:27Peter Shamshiri?

  We appreciated your book. A lot of people are putting out Supreme Court books these days.

• 45:32Speaker 05

  And they're emailing us.

• 45:33Peter Shamshiri?

  And I'm gonna be honest, a lot, a lot of them, yeah, they email us and a lot of them are just biting our shit, you know?

• 45:38Speaker 05

  So thanks for having original ideas.

• 45:42Speaker 04

  Well, if you want to, if you want to put that in writing, we can put that on the back of the book.

• 45:51Peter Shamshiri?

  Love it.

• 45:52Michael Liroff?

  Five to Four is presented by Prologue Projects. This episode was produced by Alison Rodgers. Leon Nefok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.