We Need To Talk About Judicial Review

In the third installment of our Hot Supreme Court Reform September series, Leah sits down with Daphna Renan and Nikolas Bowie to discuss how judicial supremacy became the default operating system of the federal government, and how limiting the Supreme Court’s power to decline to enforce federal statutes is a crucial tool for reining it in. Niko and Daphna’s book is Supremacy: How Rule by the Court Replaced Government by the People https://bookshop.org/p/books/supremacy-how-rule-by-the-court-replaced-government-by-the-people-daphna-renan/2237cf018f010b92?ean=9781324092803&bkshp-astro=t. Enter the giveaway here https://forms.gle/9Vtkpo27C5ENtb7r9! Take the Strict Scrutiny survey https://crooked.com/strictsurvey. New Strict Scrutiny merch available here https://store.crooked.com/products/were-gonna-need-a-bigger-court-graphic-t-shirt. You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle http://crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.socialFor a transcript of an episode of Strict Scrutiny please email [email protected]

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

• 0:00Leah Litman?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. It's back to school season, and this year, 5 million children across Texas are going to be greeted by the 10 Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the 10 Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court. And they need you to amplify their voices before the Supreme Court gets its hands on this case. And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this.

• 0:39Speaker 01

  They're going to go up, but we're going to fight to get them taken down.

• 0:45Leah Litman?

  That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian, and their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies, like these 10 Commandments laws and the decisions the Supreme Court hands down. Every child deserves access to public education, where they aren't subject to state-imposed religion, or religious instruction, or coercion. Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit au.org/10c to learn more about this case and how you can help join the fight

• 1:29Leah Litman?

  to protect church-state separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back.

• 1:41Speaker 02

  Coca-Cola. For the big, for the small, the short, and the tall. Peacemakers, risk-takers. For the optimists, pessimists. For long-distance love. For introverts and extroverts. The thinkers and the doers. For old friends and new. Coca-Cola. For everyone. Pick up some Coca-Cola at a store near you.

• 2:12Speaker 03

  Mr. Chief Justice, may it please be poured. It's an old joke, but when a hargoned man argues against two beautiful ladies like this, they're going to have the last word.

• 2:24Speaker 04

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 2:55Leah Litman?

  Hi, everyone. I'm here with Nico Buie and Daphna Renan, professors at Harvard Law School and the authors of the great new book, Supremacy: How Rule by the Court Replaced Government by the People. Welcome back to Strict Scrutiny, Nico and Daphna.

• 3:07Speaker 05

  Thanks for having us.

• 3:08Leah Litman?

  Thanks for having us. I say welcome back, of course, because on our regular episode Monday, we had a conversation about your fabulous new book, Supremacy. And this is, in some ways, part two of that conversation, but styled as part of our hot SCOTUS Reform September series. Since you all literally just wrote the book on the topic, I wanted to speak with you about the Supreme Court reform that is a key subject of your book, and that is what to do about the Supreme Court's power of judicial review, the court's power to decline to enforce a federal statute. Okay, so, ready to get started again? Yeah. Awesome. And just a reminder to everyone, I love this book so much. We are doing a giveaway. It will run through tomorrow, Friday, 5 Eastern. If you purchase the book, you can enter the giveaway link in the show notes, upload

• 3:53Leah Litman?

  a copy of your receipt, and get a t-shirt or a mug. Okay. So, I will continue where we left off the conversation, which was, we were talking about how, in the period immediately before and after Dred Scott, judicial supremacy became embraced as a mechanism to further white supremacy, as the Supreme Court kind of entered its Eric Cartman era, saying, "I am the authority." And white supremacists were like, "Yes, you are, since you are on our side." So, I wanted to then ask you, what happened after that? After Dred Scott? Who comes to embrace these ideas of judicial supremacy? And who picks up on them and has continued to embrace them ever since?

• 4:36Leah Litman?

  I realize those are big questions, but one of you can decide to tackle them first.

• 4:41Speaker 05

  So, when the court decided Dred Scott, it was using a power that the Constitution doesn't refer to. It doesn't talk about it. Nothing gives the court the power to regulate Congress. But one thing that the opponents of slavery understood is that the Constitution gives Congress a lot of authority to regulate the court explicitly. And so, when thinking about, how do we abolish slavery or ban the spread of slavery when the Supreme Court is so hostile to our goal? The early Republicans, the people who founded the Republican Party, really drew upon all

• 5:24Speaker 05

  of the things the Constitution authorizes Congress to do. And they understood that the Supreme Court can only act in a way that Congress permits. The court doesn't have this floating, abstract power. It didn't just descend from the mountains and announce that it has this unregulatable authority.

• 5:45Leah Litman?

  But see Sam Alito's interview in the Wall Street Journal, but we'll put that to the side.

• 5:48Speaker 05

  I know. He might think that.

• 5:50Leah Litman?

  Right. He can think whatever he wants.

• 5:52Speaker 05

  It's like, I'm the only one willing to say it, because you didn't read the document.

• 5:55Leah Litman?

  Right.

• 5:56Speaker 05

  And the document says that here is Congress's power. And so, one thing that Congress did was, it just ignored the court. So, in 1862, Congress did precisely what Dred Scott said it could not do, which is ban the spread of slavery in federal territory, full stop. There was no constitutional amendment, no waiting for the justices to die. They just did what they wanted, because they had that authority. Abraham Lincoln was assassinated and replaced by a white supremacist. Congress changed the number of justices on the court, because they didn't want this new President Johnson to appoint people who would threaten its new laws. When Congress passed legislation to protect the right to vote for black men in the South,

• 6:40Speaker 05

  and it looked like the court might get in the way, the author of the 14th Amendment, John Bingham, said, "I don't think the court should be able to invalidate federal laws unless a supermajority of the justices think the law is unconstitutional." And the House passed that bill. But then, when it got to the Senate, the author of the 13th Amendment was like, "I don't know if that goes far enough. I think that the court shouldn't have the power to even assess this law. The Reconstruction Act is a political question. Its constitutionality is up to us. The court shouldn't get in the way."

• 7:14Leah Litman?

  I would love, just sorry to interrupt, to have a debate and discussion with the Reconstructionists about what legislation goes far enough vis a vis the Supreme Court?

• 7:24Speaker 05

  No, I mean, that was literally, that was literally the debate. I mean, that's kind of what was amazing about researching this book, is there are all of these people, quite candidly, saying, "The court doesn't have this power, but it does give us a lot of power." My favorite, by the way, version of this was the senator from Oklahoma, Robert Owen. He's the person who authored the first ban on child labor. He also happened to author the bill creating the Federal Reserve. And after the court struck down the child labor bill, he was so mad that he passed, or he proposed a bill that said, "Look, the justices don't get to serve for life. They get to serve during good behavior." And who gets to decide what good behavior is? We do.

• 8:08Speaker 05

  And so, if a judge defies federal law, that's not acting with good behavior anymore. We're going to take that as a sign the judge doesn't want to keep their job and has resigned.

• 8:18Leah Litman?

  Quiet quitting.

• 8:19Speaker 05

  Yeah, exactly. And so, part of what we found is just that there's this rich tapestry of people in Congress and outside of it, who understood that the Constitution ultimately is interpreted by the people. And the people elect members of Congress to give that interpretation light. And it is the role of the court to enforce that interpretation. It is not the role of the court to defy it. And so Congress's power includes the power to strip the court of jurisdiction, to say when it can intervene, how many justices does it need to make a decision? What kinds of powers does it have? How many justices sit on the court?

• 9:04Speaker 05

  Do they have clerks? Do they have air conditioning? Where is their building? All of that is up to federal law to decide.

• 9:12Leah Litman?

  Definitely. Do you want to kind of weigh in on this? Where did this movement for judicial supremacy go after Dred Scott? And like, who picked up on it?

• 9:21Speaker 06

  Yeah, so who picked up on it is former Confederates that were trying to reclaim an old vision of the Constitution through a very targeted litigation strategy in culminating in the Supreme Court. And also a kind of war of ideas, as one of them wrote in The Lost Cause, that became a kind of tract that was putting forward the ideology that what we had was a reckless Congress. Because as Reconstruction unfolds, Congress is passing the first civil rights laws, the first vote protections, the first agencies administering what they term practical freedom. And so the ideology is, look, what we have is a reckless Congress.

• 10:04Speaker 06

  It's run amok. It's given up on the constitutional tradition. And what we need is a Supreme Court that can reclaim the Constitution as it was. So that is the vision that underwrites the rise of judicial supremacy at this period. And the Republican Party comes into being in opposition to that vision. So you see Abraham Lincoln is kind of trying to think of what to make sense of this creed of judicial supremacy, actually, as the Supreme Court's deciding Dred Scott. And there are these scraps of his notes that he's saying, well, what would it mean if this were actually the dominant creed? That the Supreme Court gets to decide the question of whether Congress can restrict the spread of slavery in the territories or not. And he says, and judicial supremacy wouldn't just require that.

• 10:49Speaker 06

  It would actually require us to obey, not just the parties in the litigation, but all of us, the whole community, all of Congress, all of government, to obey the court on any constitutional question. And he thinks, like, how is this compatible with American constitutional democracy? So Lincoln kind of rises to power, making a name for himself in debates in Illinois, where he is taking the position that this cannot be our constitutional creed, that judicial supremacy, giving this kind of power to the court, is not a viable strategy for building a meaningful democratic republic in the United States. And it becomes the founding creed of the Republican Party,

• 11:30Speaker 06

  which really stands in opposition to what they term again and again, is they will not stand for another, a second Dred Scott decision. So those become the politics of the nation as it is building multiracial democracy in the United States for the first time.

• 11:48Leah Litman?

  So just want to pick up on something you said. You described how this was part of the Lost Cause movement, which of course is the movement to try to restore the former Confederacy to power. And as part of that, there were efforts to depict the former Confederacy as fighting over a cause besides slavery. You know, and it oftentimes gets chalked up to federal overreach. And that kind of becomes part of this narrative that you were talking about, whereby the Reconstruction Congress, they like went too far, right? They were running roughshod over the Constitution and doing things like trying to check the Supreme Court or limit, you know, a white supremacist president. And if that narrative sounds familiar, of course, this is a narrative that found its way into a Supreme Court decision last term, you know, Trump versus Slaughter,

• 12:33Leah Litman?

  where the Chief Justice writes describing a Reconstruction Congress effort to constrain the powers of Andrew Johnson by preventing him from firing federal officials who were charged with implementing Reconstruction as something everybody recognizes, right? Was like this gross violation of the Constitution that had to be stopped. Okay, so sorry, that was a bit of tangent.

• 12:56Speaker 06

  And Myers, which is kind of the foundational Supreme Court case that begins this trajectory of the unitary executive and American doctrine, is really Chief Justice Taft relitigating the Tenure of Office Act and saying, I need to do penance for the fact that I didn't see it before.

• 13:17Leah Litman?

  I apologize on behalf of all Republicans. We did Andrew Johnson wrong.

• 13:22Speaker 06

  Exactly.

• 13:23Speaker 05

  And that's literally what he writes.

• 13:24Leah Litman?

  Yes, I know.

• 13:27Leah Litman?

  It's a paraphrase, but yeah, it's basically there.

• 13:32Leah Litman?

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• 15:43Leah Litman?

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• 17:53Leah Litman?

  The book, as you were talking about, you know, recounts and recovers this tradition of resisting judicial supremacy. You know, you're talking about abolitionists, Reconstruction era legislators, but so many more, right? Suffragists, 1960s civil rights leaders, you know, and many others. What can we learn from studying these resistance movements?

• 18:12Speaker 06

  Yeah, so one thing that we learned is that there is a fundamental distinction that they are building in the early 20th century that has really been lost to us in constitutional thought. And that's the distinction between horizontal and vertical review, or between the power of the court to reject the constitutional judgment of Congress reflected in legislation, either with support to overwhelm a presidential veto, or with the support of a president signing the law, right? So they're saying, look, there is no place in a democracy for a court's power to reject the constitutional judgment reflected in federal statutes. But there's a vital difference.

• 18:55Speaker 06

  The leading scholar and labor lawyer at the time of the early 20th century describes this as a horse of a different color entirely. For the court to employ federal statutes to check the states, to check states that would nullify those federal commitments. We can't have a federal union. We can't have a set of federal guarantees if there's not a mechanism to say, states, you have to comply with them even when you don't want to. And so this distinction between horizontal and vertical review becomes crucial to progressives. It becomes crucial to the AFL and the labor movement during this time. It becomes crucial to suffragists involved in this. So Beulah Ratliff is a suffragist leader who says, "Look, all students of government understand

• 19:40Speaker 06

  that there's a fundamental difference between a court standing in the way of democracy by invalidating an act of Congress and the court preventing states from nullifying federal guarantees." So this distinction between horizontal and vertical review, between a court that is standing in the way of constitutional democracy by invalidating an act of Congress, or a court that is serving constitutional democracy by enforcing acts of Congress against states, is fundamental to these resistance movements and is a distinction that we really hope to resurrect through the book.

• 20:19Leah Litman?

  Yeah, so I want to pick up on this distinction and use this as an opportunity to maybe discuss some concerns that sometimes get floated, you know, with the idea that maybe we can limit or eliminate the Supreme Court's power of judicial review, again, specifically meaning horizontal review. So one concern, right, I've sometimes heard is, well, what if the president does something illegal, right? The birthright citizenship executive order, right? Or other presidential efforts to defy the Constitution? You know, how does limiting the power of the Supreme Court fit into that possibility?

• 20:55Speaker 05

  Yeah, so we see limiting the power of the court to invalidate acts of Congress as necessary in order to hold the president accountable to law. Because Congress has passed lots of laws to regulate the president. Congress has passed laws that, for example, prohibit the president from sending troops abroad without congressional approval, or from declaring national emergencies and doing whatever he wants without congressional approval. Congress has passed laws banning corruption, the use of money in politics. It has criminalized assassinations and starting a coup.

• 21:36Speaker 05

  Congress has done all of this to restrain presidential power. But the reason why none of these laws are being enforced is in part because the Supreme Court has looked at these laws and said that they are unconstitutional. Not because there's like some constitutional amendment saying Congress shall not regulate the president. And everyone's like, oh, I know. You know, we just, we felt like ignoring this text. But because the court is interpreting this extremely vague language, like, the executive power shall be vested in a president, and saying, you know what that means? That means the president can just pick some laws and decline to enforce them. That means that Congress cannot regulate this supermench because he's just overwhelmingly powerful and needs to do whatever he thinks

• 22:21Speaker 05

  in order to take care that the laws are effectively executed. And so the thing standing in the way is the court.

• 22:27Leah Litman?

  Right.

• 22:28Speaker 05

  And if we want to have a system in which presidents are accountable to law, if we want to have a system where ICE agents, or border patrol agents, or, you know, federal officials can't just like go into your house and take your stuff and put you in jail and kidnap you off the street, we need a society that abides by the law. And what that means is Congress asserting its authority to make law democratically and to have that law consistently enforced rather than our current system in which the court can basically give presidents, or ICE agents, or everyone else a get out of jail free card

• 23:11Speaker 05

  on the theory that this law is somehow inappropriate.

• 23:15Leah Litman?

  So since this proposal, or any kind of proposal under this umbrella, is focused on enforcing federal law, you know, another concern that some people might have is, well, what if Congress enacts a bad law, right? And that's simplifying it, oversimplifying it, of course. But, you know, you can imagine, of course, Congress enacting an abortion ban. You know, you talk about that prospect, obviously, in the book. But, you know, kind of what does an effort limiting the court's power to decline to enforce federal law mean about that possibility or prospect?

• 23:48Speaker 06

  Yeah, so there's no question that Congress can and that it has enacted bad laws. The question is, who decides what a bad law is? And what do you do about it? So if you let the Supreme Court decide what a bad law is, well, if you look at the history of horizontal review in the United States, the court has decided that a ban on child labor is a bad law, that an income tax is a bad law, that a Voting Rights Act is a bad law, that limiting corruption and billionaires overrunning elections is a bad law, right? If you don't let the court decide these questions, then there is an absolute risk of bad laws. And what we need is politics to fight those bad laws, to wipe them off the books.

• 24:33Speaker 06

  And the reality is that, almost universally in the United States, the way we have gotten rid of bad federal laws, there's a few examples, and they loom large in conversations around judicial supremacy. But almost universally, it has taken politics. It has taken the court getting out of the way and the people either changing the law, repealing the law, or making it of non-effect. And so the argument for democratic constitutionalism at the core of our book is not an argument that protects us from a politics that would ever result in bad laws. But what it does is it says, it's not up to Sam Alito what a bad law is. It's not up to one justice on the Supreme Court,

• 25:18Speaker 06

  one swing justice on the Supreme Court, what a bad law is. And if we think there's a bad law, then we need to organize and make our politics focused on getting rid of it.

• 25:27Leah Litman?

  So one last kind of counter or concern before we shift to, you know, what this possible reform or reforms might look like. And that, of course, is the specter or shadow of Brown versus Board of Education, which oftentimes, you know, in discussions about limiting the Supreme Court's power, will get trotted out. Now, obviously, this relates to the distinction between horizontal and vertical review. But I also wanted, you know, you to reflect on, you know, people's instinct, right? Or questions about, well, what does this mean for cases like Brown versus Board of Education, which invalidated separate but equal segregation and cases like that?

• 26:02Speaker 05

  Yeah, I think when people think about the Supreme Court, they have in mind cases like Brown versus Board of Education, when the court declared segregation unconstitutional, or, you know, Roe, or a Burgerfell, or any number of decisions where they're like, I don't know, sometimes I like what they do, and sometimes I don't. It's a mixed bag. But part of what we found in doing the research for the book is this really important distinction between when the court is invalidating federal law and when it is invalidating state law. And that distinction is not just a different adjective. It's not just like states are different and therefore they're okay. But it reflects that in a federal democracy, Congress represents our highest legislature.

• 26:46Speaker 05

  And in order to give effect to what that legislature does, you need to have someone enforce its laws against subordinate or inferior governments. And so one group of people who we focused on and found just a lot of amazing stuff in the archives was the NAACP Legal Defense Fund, the lawyers who argued Brown versus Board of Education. And in the 1920s and 1930s, the NAACP was focused on, among other things, trying to get Congress to pass an anti-lynching bill. And the reason why that was necessary was because Congress had passed all of these laws in the 1870s that the court had invalidated.

• 27:31Speaker 05

  And they were like, come on, please, just like pass this new law. But opponents of the anti-lynching bill could point to all of those judicial opinions and say, sorry, like, it's unconstitutional.

• 27:43Speaker 05

  And one thing that the NAACP lawyers realized was the court had not invalidated every law that Congress passed in 1870.

• 27:53Speaker 06

  They would have, right, if they could, but they did not.

• 27:55Speaker 05

  They didn't. There were some that just like managed to squeeze through the cracks, including one that made it a crime to conspire to take away people's constitutional rights, as well as another that said, federal courts, if you see someone violating someone's federally protected rights, hold them liable, you know, give the victim damages or injunction. And so Charles Hamilton Houston wrote this brief to President Roosevelt in 1932 saying, there are, or 1933, rather, there are these statutes, you know, they're still on the books, you can enforce them. And then, when the Roosevelt administration was like, I don't know, the NAACP took these same statutes and started litigating under them and said,

• 28:40Speaker 05

  it is time for the court to stop defying these laws and start procuring them to life. When you see a sheriff lynching somebody, enforce the law that Congress already passed to stop it. And starting in 1937, the Supreme Court said, I guess, I guess we can enforce these laws. We don't have to, we don't have to keep doing this. We don't have to keep just striking all this down. And, and that's what culminated in Brown.

• 29:08Speaker 06

  Yeah.

• 29:08Speaker 05

  So the law at issue in Brown was this law called the Ku Klux Klan Act of 1871, which in 1903, the Supreme Court looked at that statute and said, I don't know what you expect us to do with it when we see Alabama disenfranchising all black people. The statute's not enough. But in Brown, Thurgood Marshall and Constance Baker Motley pointed to that statute and said, this is what empowers you to get rid of racial segregation in education. And finally, the court stopped getting in the way and started to bring this legislation to effect. So cases like Brown, Roe also relied on the Klan Act, Obergefell also relied on the Klan Act, even Dobbs relied on the Klan Act. It was whole women's health. And

• 29:53Speaker 05

  the Jackson abortion clinic that was opposed to Mississippi's abortion ban, used this statute to try to stop Mississippi and Louisiana from getting in the way of abortion rights. And so these sorts of statutes are really vital. They're what carry constitutional rights to our lived experience. And so we want courts to enforce them. And that means embracing its power to engage in vertical review. But we don't want courts to defy them like they did in Texas, when they said, there's nothing we can do about this abortion ban, that's this bounty law, where we're just stuck allowing Texas to escape federal oversight.

• 30:30Speaker 06

  There's this incredible moment in the Supreme Court reargument in Brown, where the justices are trying to figure out, how do we have the power to tell states to stop segregation in their schools? And they're kind of pushing Marshall, Thurgood Marshall on this point. And he says, it's the Klan Act. It's a statute from 1871. He calls it by a different name because it was codified in a different part of the US Code at the time. Today, we know it as Section 1983. But, but he says, this is where you court get your power. That's our power point. He says, it's not just your authority, it's your responsibility to implement this statute and to make equal protection meaningful in the states. And scholars who have written about Brown have described this as a moment

• 31:13Speaker 06

  where Marshall chokes in the argument. He, he forgets that he should be talking about the 14th Amendment. But, but our argument is, no, like, he's putting on the table this theory of democratic constitutionalism. He's saying, look, you have a federal statute that is telling you, court, enforce the, the guarantee of equal protection against the states. And it's that, that vision of democratic constitutionalism that, that Brown really instantiates. And it's, I think, a misunderstanding of Brown as dependent on judicial supremacy that is very much at the crux of why there is such a commitment to judicial supremacy on the left.

• 31:55Leah Litman?

  Strict scrutiny is brought to you by Lawyering Without Law. What happens when authoritarianism doesn't abandon the law, but uses it to undermine democratic values and institutions? Lawyering Without Law, a podcast from the Knight First Amendment Institute at Columbia University, takes on this urgent question, hosted by Katie Glenn Bass and Madhav Kozla. The six-part series explores the role lawyers play in either defending democracy or facilitating the slide into authoritarianism. Episodes feature leading experts, including Kim Lane Shepley, on how authoritarian leaders exploit legal systems to consolidate power, Lawrence Lessig on the threat institutional corruption poses to American democracy, and Deborah Perlstein on how the decades-long erosion of professional norms have fueled the democratic

• 32:38Leah Litman?

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• 33:06Leah Litman?

  Maybe we can talk now about implementing this vision of democratic constitutionalism. Because already in the conversation, we've talked about a few different possible Supreme Court reforms that might work in that direction. Restrictions on judicial review that say the Supreme Court doesn't have the power to decline to enforce federal laws, or maybe limitations on their ability to decline to enforce federal laws. You mentioned requirements that there be a super majority of justices, you know, to invalidate a federal law before they do so. Another possibility, defining good behavior not to mean, you know, declining

• 33:44Leah Litman?

  to enforce federal law. So what other kind of possible reforms could be used, you know, to implement this vision of democratic constitutionalism?

• 33:57Speaker 06

  Yeah. So one thing that's just important as a kind of building block is that the Constitution explicitly empowers Congress to regulate the Supreme Court and to regulate the appellate authority of the Supreme Court to create and regulate the, the lower courts. And the, Congress has used that power from the beginning. So it is deeply ahistorical to suggest that what we have is a system of government where the court has some, like, need to decide every constitutional question. That is not the system we have ever lived in. And it's not the, the body of laws that were created at the founding to, to structure the, the powers of the Supreme Court. This authority of Congress to regulate the appellate jurisdiction

• 34:42Speaker 06

  of the Supreme Court is what Charles Black described as the rock on which the legitimacy of the whole judicial project functions in a democracy. So the, the power is there, and it's really a policy conversation of like, well, what, what should Congress do? What are good uses of that power to regulate and cabin the court so that you can enable a more democratic interpretation of the Constitution, the one that we see reflected in federal statutes, to have meaning and force in the world? And we're kind of at an extreme outer bound of what judicial supremacy can look like in, in the United States today. So there's a range of options on the table. And it, the, the choice is

• 35:25Speaker 06

  not all or nothing. So, so one possibility, as you said, is the possibility that has been proposed by influential voices across American history, including the, the lead author of the 14th Amendment, that says, look, we should have some sort of consensus rule so that the court doesn't get to invalidate a federal statute unless 7-2, 8-1, maybe a unanimity of the justices think that there's really no basis on which to think that this statute is constitutional. And that would be kind of institutionalizing, an idea that has always been at the core of justifications of judicial power, which is that the court

• 36:04Speaker 06

  shouldn't second guess the work of Congress if there is a plausible justification for what Congress has done. The, the argument's often associated with an early, a 19th century, late 19th century scholar, James Bradley Thayer, that said, you know, you need a clear error, obvious error, before you can invalidate an act of Congress. Actually, Frederick Douglass made that argument before James Bradley Thayer. But, but he said, in lamenting the, the civil rights cases, look, unless there is like no justification you can give me for the validity of a law, how are you telling me that the Civil Rights Act of 1875 is an unconstitutional statute? So, so a consensus rule is just bringing into being this idea

• 36:46Speaker 06

  that has been around for a very long time, but that the court has increasingly kind of honored only in the breach. And, and today has like stopped even saying that it needs to, to recognize Congress's constitutional judgment as a legitimate judgment worthy of deference. So that's one, one possibility that, that could be on the table.

• 37:07Leah Litman?

  Nico, did you want to add others?

• 37:09Speaker 05

  Sure, yeah. I mean, so to get specific, like, imagine a future Congress wants to enact a new Voting Rights Act. So it looks around and says, our current democracy is, is broken. We want to make Congress more responsive and more democratic. We want to make our elections better. We want to fix the problems that we have right now. And it's not difficult to imagine that the current majority of the Supreme Court would declare that unconstitutional. Not because it violates the Constitution, but because they say it violates the Constitution. They just announce a new constitutional principle against Voting Rights Act. So I think that's true, not just for a Voting Rights Act, but for literally any law that a current majority

• 37:54Speaker 05

  of the court does not like for policy reasons. So a reproductive justice law, an environmental or climate law, a labor law, any kind of law you can imagine that a current majority of the court doesn't like, it's going to be struck down. And so in that environment, I think anyone has to ask, what can Congress do to protect that legislation from an almost certain hostile court? And the answer is a lot, because this was the problem facing the Reconstruction Congress. This is a problem that's been facing Congresses over generations. And Congress has done things to protect this sort of legislation. So among other things that Congress could include in this

• 38:39Speaker 05

  voting rights law, it could conclude a provision saying, the law is a political question and courts lack jurisdiction to assess its constitutionality. Its constitutionality has been decided by Congress and by voters. Congress could say that there is no cause of action. No one can bring a claim challenging this law. It could say that no court has jurisdiction to evaluate whether this law is constitutional or not. It could say that the United States has sovereign immunity. And so it does not waive that sovereign immunity. It could say that among all of the statutes that Congress has passed to give courts power, it does not have the power to issue an injunction in this context or any other sort of writ in this context.

• 39:24Speaker 05

  It could say the good behavior rule. It could say that, you know, here is a rule of interpretation. So when you interpret this law, here are the rules you have to apply. It could say that the court cannot meet for another year or two if the defendant is going to assess this law. It could create a new court. It could create a new court called the Court for Reviewing This Statute and staff it with the people it wants. Or Congress could say, we're going to add four new justices or six new justices or 10 new justices to the court, as Congress has done in the past, to change the numbers of justices, given the obvious threat that the court imposes. And so I don't think that a bill necessarily needs to include all of those protections.

• 40:08Speaker 05

  You know, I think ideally, Congress would not need to include all of those protections. But what that range of protections shows is that the actual limit on what Congress does to protect its legislation from the court is not a constitutional obstacle, and it is not any other legal obstacle. It is a political obstacle and a cultural obstacle. It's voters do not know. We need to demand this from members of Congress. You need to have a plan for how are you going to protect your legislation from the court? You need to have a plan for court reform, impose ethics rules, you know, disempower the court.

• 40:50Speaker 05

  Because absent that demand, absent that public pressure, Congress is going to pass some statute, and it might be a wonderful statute, but it will help precisely zero people. Because as soon as it is enacted, some judge in Texas is going to say it's unconstitutional and a Supreme Court is going to agree. So if we want to live under any other system, we have to, you know, become more comfortable, as the Reconstruction Congress was, with defining the Constitution ourselves, issuing our understanding of what the Constitution means, and then protecting that interpretation from other people.

• 41:26Speaker 06

  And it's worth noting that most of the things that Congress can do, Congress has done across American history. So it has made the size of the court bigger and smaller. It has taken away injunctive relief in labor cases or in tax cases. It has channeled jurisdiction to a DC circuit. It has limited when and why and how the Supreme Court can review certain issues. It has bifurcated-

• 41:50Leah Litman?

  It's canceled Supreme Court terms.

• 41:52Speaker 06

  It's canceled Supreme Court terms. It's bifurcated review so that certain issues go to a new court that it's created, while other issues go to the district courts through ordinary litigation. So there's just, history offers a range of examples of what Congress has in fact already done. And these tools remain available.

• 42:10Leah Litman?

  So I now want to ask a series of, you know, short questions to kind of make explicit things we've already covered, but just want to make them super clear. So the first is, you know, what problem or problems would this array of possible reforms address or fix?

• 42:29Speaker 06

  So the problem is that today, we have a constitutional culture and a dominant constitutional ideology that says the court gets to reject the constitutional judgment of the people reflected in federal statutes. And we need a constitutional culture and a constitutional theory that puts that judgment reflected in federal statutes front and center in the way that we interpret the Constitution.

• 42:57Leah Litman?

  And I guess like, you can think of that in terms of democratic theory, right? Like, why did these nine-robed weirdos get to decide this question, rather than people who are actually accountable to the people? Or you can think about that in kind of more concrete cases. You know, you were imagining, Nico, like, well, what if Congress passed this really wonderful law? It would do diddly squat, right? If the Supreme Court just decided it didn't like it or it thought it was a bad law. Think about a wealth tax or student debt relief, you know, or a new Voting Rights Act, et cetera. So here too, you've already kind of answered, but just want to make this clear. What would be needed to make these kinds of reforms happen? You know, legislation, constitutional amendment, or what?

• 43:37Speaker 05

  It would take a majority of Congress and a president to sign it, or it would take a super majority of Congress to overcome a presidential veto. But all of these reforms are ordinary legislation. And, you know, as Daphna was saying, it's ordinary legislation that Congress has enacted. You know, just this term, the Supreme Court enforced a jurisdiction strip. The issue is that for a long time, the people who have thought about this have had, you know, goals of, for example, making it as easy as possible to deport people or make it as hard as possible for people incarcerated to contest their incarceration.

• 44:17Leah Litman?

  Yeah.

• 44:17Speaker 05

  Like, the goals have been bad. But the power it represents is something that, you know, other people can use for different ends.

• 44:27Leah Litman?

  Speaking of like, problem solving, for whatever reason, this calls to mind a comment that Kate made while having a discussion with people about the amendment to change how Kansas Supreme Court justices are elected, when she said, wouldn't it be nice to have a court that wasn't omnipresent or that we were thinking about in our everyday lives or that we didn't have to think about? Like, let's move to that world. And it seems like that that's a smaller problem, but perhaps one that these reforms would also address.

• 44:55Speaker 06

  I also think that that would create a more independent and legitimate court. Because part of the problem that we have created in this country is that there are questions that we have deep political divisions over. And you can't find an answer by reading three words on the Constitution over and over and over again and upside down. So we need to resolve these questions politically.

• 45:19Leah Litman?

  But what if you did textualism real hard?

• 45:23Speaker 06

  And if we say, look, the only way we get to decide them is the Supreme Court, then we get the, the kind of rabid politics around judicial appointments that we've seen play out and the hardball that we're seeing play out around appointments.

• 45:38Speaker 05

  It would also make a better Congress.

• 45:41Leah Litman?

  Yes.

• 45:41Speaker 05

  You know, like, right now, we have a Congress in which, you know, many members-

• 45:45Leah Litman?

  We do have a Congress?

• 45:46Speaker 05

  We have a Congress and many members are like, unaware of the power they have, as well as their capacity to interpret the Constitution. And it's with many issues. I mean, we're seeing it right now when it comes to, you know, war abroad.

• 46:01Leah Litman?

  Yeah.

• 46:02Speaker 05

  You know, they're like, I don't know about war. Like, who am I, a senator, to, you know, stand in the way of a president?

• 46:08Leah Litman?

  Send tweet, right?

• 46:10Speaker 05

  Yeah, yeah. And we've talked about this, this book for a long time now. And a lot of people who are sympathetic to the argument are nevertheless worried about Congress.

• 46:23Leah Litman?

  Yes.

• 46:23Speaker 05

  Because they look at the current Congress and they think, I don't want those people to decide anything because those people are terrible. And it's hard to disagree.

• 46:32Leah Litman?

  Yeah.

• 46:33Speaker 05

  But at the same time, you know, one reason why Congress is just so broken today is because all of the ways in which Congress has tried to fix itself over the years, from the Voting Rights Act to keeping money out of politics to preventing corruption, those laws have been struck down by the court. And if we want a better Congress, one that is functional and representative and doing the kinds of things that everyone expects Congress to do, then you also need a Congress with responsibility. And that responsibility includes responsibility over deciding what the Constitution means.

• 47:10Leah Litman?

  So your last answer already touched on this, Nico, but I'm going to ask it anyways. If simple legislation could make these reforms happen, do you think the Supreme Court, and specifically this Supreme Court, would allow the legislation to stand or would yeet it into the sun? You can also think of this as the, why isn't this reform sufficient, even if it's necessary question?

• 47:32Speaker 05

  Yeah, no, obviously not.

• 47:37Speaker 05

  Again, you know, you could quote a Clarence Thomas opinion from last year and put it into a law. But if that law is going to protect abortion rights, it's unconstitutional as far as he's concerned. Like, you know, and that's just kind of obvious. But I think the key insight-

• 47:55Speaker 05

  With with respect to judicial resistance is that, you know, if Congress were to pass a law banning bribery, I mean, it already has done this, but if it were to really mean it and pass a law banning bribery by the justices, and the justices said, you know what? We have a constitutional, not only a constitutional right, a constitutional obligation to take whatever bribes we get, and therefore, we're going to not enforce this law. That is not the end of the story.

• 48:26Leah Litman?

  Right.

• 48:27Speaker 05

  Congress can do a lot to stop the court from interfering. You know, the most intuitive response would just be to add 10 justices who understand that bribery is not a constitutional duty. Yeah, easy confirmation hearing. What do you think about bribes? But, you know, Congress could also say, you know, the Supreme Court is not responsible for enforcing this.

• 48:50Leah Litman?

  Yeah.

• 48:50Speaker 05

  Here is a federal agency responsible, and we don't want any judge, you know, interfering, or Congress could say, Court, we control your budget. We control all of the kinds of powers that you have. We're going to take away the powers that would interfere with our enforcement of this anti-bribery statute. And so the real key limit is what would voters think about that?

• 49:14Leah Litman?

  Yeah.

• 49:15Speaker 05

  You know, would voters, when they see Congress trying to enforce its law against the court, would they say, I'm sorry, judicial independence means you shouldn't touch the court with this anti-bribery law? Or would they say, please, you know, we need a better country? And we wrote this book to try to encourage more people to think of that hypothetical and demand that Congress act to enforce what the Constitution really intuitively means, as opposed to this really counterintuitive form of constitutional democracy we've inherited in which we have this, you know, supreme body that is making all of the decisions for us, but that we can't even, you know, elect or or hold accountable.

• 49:59Leah Litman?

  So that seems like a perfect place to end. I want to thank again Niko Bowie and Daphna Renan for joining. And their book, again, Supremacy: How Rule by the Court Replaced Government by the People, is out this week. You can get it at all of your favorite booksellers, including bookshop.org. And if you do purchase the book before tomorrow, Friday, 5 Eastern, you can enter to win a giveaway, this overruled judicial supremacy T-shirt or a mug. And the link to enter in that giveaway is in the show notes. So thank you again, Niko and Daphna, for taking the time.

• 50:32Speaker 05

  Thank you.

• 50:32Leah Litman?

  Thank you so much for having us, of course. I want to put in one last plug. So I think I alluded to this on a previous episode, but I have changed my mind about certain things. And I feel like before I read your book, I understood the kind of like theoretical conceptual problems with judicial review. I also believe that Congress had the power to limit the Supreme Court's power of judicial review, but probably supported doing so in like a targeted fashion in the sense of they adopt a new Voting Rights Act, and then they limit the Supreme Court's ability, you know, to strike it down or the anti-bribery statute and whatnot. And honestly, like after I read your book, I was like, no, that's not going big enough. So yeah, no, thank you again for writing the book. And again, everyone should check it out. Supremacy: How Rule by the Court Replaced Government by the People.

• 51:17Speaker 05

  Thanks.

• 51:17Leah Litman?

  Thank you.

• 51:23Leah Litman?

  Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Raul and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt Degrope, Ben Heathcote, Johanna Case, Kenny Moffett, Adam Lippert, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America East.

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