The Making of a Judicial Coup

At his first inaugural in 1861, Abraham Lincoln warned that if we allowed the Supreme Court to rule that laws were unconstitutional, we would cease to be a democratic nation. Lincoln accepted the court’s responsibility to resolve actual disputes, like those that judges typically decide. But what he said justices could not properly do was declare laws themselves unconstitutional. In Lincoln’s view, the Dred Scott ruling in 1857 exceeded the court’s authority by invalidating the “Missouri Compromise,” federal legislation that limited slavery’s expansion. And so upon taking office in 1861, Lincoln’s Republicans defied the Supreme Court, passing a law that restricted slavery’s spread westward.In Supremacy, Harvard Law professors Nikolas Bowie and Daphna Renan recount this history. As they remind readers, judicial authority to determine a law’s validity has no basis in the Constitution. At the 1787 Constitutional Convention, some Framers intended the Supreme Court to have this authority; others did not. Delegates were meticulous about specifying the president’s right to veto a law but could not agree that justices should have similar authority. The court itself seized this role early in the nineteenth century, and we’ve accepted it since with only weak protest.Supremacy: How Rule by the Court Replaced Government by the PeopleW.W. Norton & Company, 320 pp., $31.99The Constitution’s Article 1 empowers Congress to enact “necessary and proper” laws. These are not legal terms; they describe policy judgments. The 1860s amendments, guaranteeing emancipated slaves’ equality, authorized Congress to implement them with “appropriate” legislation. “Appropriate” also has no legal definition. When the Supreme Court eviscerated civil rights laws passed in the 1860s and ’70s, it merely imposed its own judgment of appropriateness—a legislative, not judicial, activity.Supremacy supports an even more powerful constitutional clause to limit the court’s role. Quoting Massachusetts Senator Charles Sumner, the authors call Article 4 a “sleeping giant,” for its guarantee to every state of a “republican” form of government. The senator observed that treating all persons equally is an essential characteristic of such a system. In defining a republican form of government, the court’s expertise doesn’t exceed that of Congress.Bowie and Renan describe the legislative and judicial branches as being on an equal plane. They label what they deem justices’ impermissible evaluation of federal legislation “horizontal review.” But the authors say that the court should properly judge the constitutionality of actions taken by lower bodies, i.e., states (“vertical review”). They acknowledge that vertical rulings may be terribly wrong but grant the court full authority to err in its vertical judgments. Because many of the court’s right-wing rulings have regarded state, not federal, laws, Supremacy’s opposition to judicial review is less radical than it may appear.In Dobbs (2022), the court considered whether the Fourteenth Amendment permitted Mississippi to ban abortion after 15 weeks of gestation. According to the Bowie-Renan theory, the Supreme Court had the right to vertically review the law and uphold its constitutionality. If, however, interpreting the same Constitution, Congress adopted a law it considered “appropriate” prohibiting states from restricting abortion, and if Mississippi then adopted a 15-week restriction, the Supreme Court’s duty would be to enforce federal law and rule in favor of a plaintiff who challenged the state’s prohibition—regardless of the justices’ personal views about its appropriateness.In the notorious 1905 Lochner case, the court rejected New York’s law that capped bakers’ working hours. Outraged progressives called for ending such judicial power. Bowie and Renan’s dichotomy, however, allows such vertical review. But if Congress authorized states to regulate working hours, justices would have no choice but to respect the law and rule against bakery owners who required longer workweeks than their states permitted. No topic in our political history has generated more hypocrisy than judicial supremacy. Bowie and Renan narrate how, when justices were reactionary and canceled laws that protected African Americans, workers, women, or immigrants, progressives denounced not only the decisions’ substance but the court’s right to make them. When justices were liberal and took the opposite tack, conservatives denounced judicial supremacy. The left has done so more frequently than the right for most of the court’s history, simply because the court has been more consistently reactionary than liberal: In 1895, the Supreme Court ruled that manufacturing monopolies could not be regulated because the Constitution didn’t define “manufacturing” as a type of “commerce.” Provoked, Eugene Debs’s Socialist Party called for the elimination of judicial review. Debs called his party the successor to Lincoln’s Republicans.During the Lochner era, Theodore Roosevelt ran for reelection as president in 1912, calling for popular referenda to overturn Supreme Court decisions. His candidacy had the support of prominent intellectuals like Walter Lippmann, America’s most widely read political columnist; Herbert Croly, a theorist who inspired Roosevelt’s “New Nationalism” campaign program; and Felix Frankfurter, a prominent progressive lawyer. The three soon founded The New Republic. In 1917, the magazine editorialized that the court “must be shorn of its present power of upsetting social legislation.”When, in 1922, the court banned a federal law that restricted children’s employment, the American Federation of Labor denounced the legitimacy of judicial review. Its argument was a rare precedent for Bowie and Renan’s unusual proposal to ban judgments about federal law but permit it for state legislation. The New Republic praised the labor federation’s “sound judgment.” The Nation editorialized that “until this power of judicial veto is limited or eliminated, [we will not have] government of, for, and by the people.” Progressives in Congress argued for their right to override court decisions by majority vote.Another backward-looking court was led in the 1920s by Chief Justice (and former President) William Howard Taft, who knew he was too old, in failing health, and no longer fit to serve. Yet, as Bowie and Renan note, he vowed not to retire to “prevent the Bolsheviki from getting control.” His was a political, not judicial, agenda.Wisconsin Senator Robert La Follette, the 1924 presidential candidate of a new Progressive Party, complained that “sovereignty has been wrested from the people and usurped by the courts. Today, the actual ruler of the American people is the Supreme Court.” His supporters included the African American sociologist W.E.B. DuBois, the educator John Dewey, and the pioneering social worker Jane Addams, as well as many who had opposed judicial supremacy since Lochner.In the 1950s and ’60s, when the court defended civil rights and liberties, it was reactionaries’ turn to denounce judicial supremacy. A conservative magazine, The National Review, denied that the court is “the ultimate and only constitutional arbiter,” acknowledging that it was contradicting its previous stand. Southern segregationists, whose forbears applauded a court that canceled civil rights, now sang a different tune. In 1956, almost all Southern congressmen and senators signed a “manifesto” that denounced justices “undertaking to legislate, in derogation of the authority of Congress.”In 1939, President Franklin Roosevelt appointed Felix Frankfurter to the Supreme Court. Frankfurter was known to insist that, right or wrong, Congress had the right to enact New Deal reforms without judicial interference. When the pendulum later swung and Congress passed laws infringing on free speech, Frankfurter still insisted on judicial restraint, earning the hostility of former allies who denounced his tolerance of bad legislation. Frankfurter’s consistency was not quite unique. In the present era, liberals, after falling in love with the court over Brown v. Board of Education, have mostly maintained their infatuation—while the court has imposed 55 years of mostly reactionary policies on affirmative action, campaign finance, environmental protection, gun possession, public health, religious practice, financial regulation, and voting rights. Although liberal scholars temper support of judicial supremacy with calls for modest reforms such as judicial term limits, none go so far as Abraham Lincoln’s unqualified rejection of judicial review. For example, in The New York Review of Books in 2023, Harvard professor Laurence Tribe recalled the few occasions when the court endorsed progressive legislation, and the 1954–69 period when it frequently did so, to warn that “exclusive focus on the dangers of a right-wing, interventionist Court also ignores the arguably even greater risks of an autocratic president.” Yet since Dred Scott, the court has imposed liberal policies much less frequently than conservative ones. It’s created a foundation for the imperial presidency we have today. Still, holding a slim reed that the court might occasionally restrain an authoritarian executive could seem astute, however slim that reed might be. Tribe’s most telling point is that if we consider Congress the court’s equal, wishing for court reforms is not enough. Legislators should step up and act like equals. When the court says that it can’t interfere with partisan gerrymandering, Congress could itself prohibit it. When the Supreme Court denies that reproductive choice is a right, Congress could legalize it nationwide. If actions like these create an impasse between the judicial and legislative branches, Congress could use powers granted in the Constitution’s Article 3. It permits laws to specify that particular topics are not reviewable by the Supreme Court: for example, that justices may not consider the constitutionality of laws to prohibit partisan gerrymandering or restrict reproductive choice. Tribe calls this tactic “a cure worse than the disease.” But Bowie and Renan chronicle how, after the Civil War, the House proposed to ban any court review of laws that protected rights of former slaves; it likely would have passed in the Senate, as well, if that body’s time was not suddenly consumed by President Andrew Johnson’s impeachment trial. In our own moment, it is also unlikely that Congress will use this Article 3 power anytime soon. A House created by partisan gerrymandering and a Senate hobbled by a self-imposed filibuster rule are unlikely to assert their rights. No other prominent legal theorists have embraced Bowie and Renan’s horizontal-vertical distinction. Would there have been less hypocrisy, perhaps even some consensus, if when justices issued mostly reactionary decisions, liberals proposed prohibiting only horizontal review of federal legislation, leaving untouched the court’s power to vertically review state laws? In rarer periods of liberal rulings, might conservatives also content themselves with rejecting horizontal review and withholding criticism of vertical judgments? Left unaddressed in Supremacy is how we get from here to there. Judicial review of legislation has relied solely on voluntary obedience. Undoing it also requires voluntary consent. The most we can expect is continued deference to the court, with modifications like changing the number of justices to create temporary partisan advantages. Supremacy’s goal can only be to spur conversations that may, in some unforeseeable future, become relevant.It may now be too late even for modest reforms. Abraham Lincoln’s fear has come to pass. We have an unrestrained executive whose powers rest largely on decrees of nine unelected lawyers who’ve routinely overruled policies enacted by the people’s representatives. We’ve passively accepted this judicial coup as normal.