Opinion | The Supreme Court Has Too Much Power and Liberals Are to Blame

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·7 min read

The Supreme Court has usurped the power of the elected branches to interpret the Constitution and to pass laws on behalf of the people themselves — the foundational principle of American representative democracy.

It has accomplished this power grab through unfounded assertions of judicial supremacy — the idea that the court has the last word on the Constitution. And the blame for this lies largely with the liberal Warren Court’s misreading of an ambiguous sentence in the 1803 decision in Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is.”

During the past 25 years, the Court has used its self-appointed role as the “ultimate constitutional interpreter” to drastically limit Congress’s power to enforce the Fourteenth Amendment through legislation. It decided the 2000 presidential election by short-circuiting the state of Florida’s recount. It struck down bipartisan campaign finance legislation by equating money with speech; Affordable Care Act provisions attempting to provide health care to the poor; key portions of the Voting Rights Act based on the made up “equal sovereignty principle”; and EPA regulations by inventing something called the “major questions doctrine.” The Court’s willingness to overturn federal laws and to limit the power of Congress and administrative agencies is driven by the misconception that it has the final say on the Constitution.

Let’s be clear: The Court does not have the last word on the Constitution. The text does not say it. Our precedents from the early republic do not support it. American presidents Andrew Jackson, Abraham Lincoln and Franklin Roosevelt have contested it. Distinguished liberal and conservative attorney generals from Robert H. Jackson to Ed Meese have opposed it. Many of the framers, though supportive of the idea of judicial review, would be shocked by the Court’s more extreme insistence that it has the final say on the Constitution — as opposed to playing a co-equal role in interpreting the document along with the elected branches.

Judicial supremacy has its origins in one of the Court’s most shameful decisions. In Dred Scott v. Sandford in 1857, the Court tried to settle the debate about slavery in the territories by declaring that Black people were not citizens under the Constitution. Rather than stop there, the Court declared the Missouri Compromise of 1820 — which forbid slavery in northern territories — was unconstitutional. It was the second time in American history the Court had struck down a federal law. During the Lincoln-Douglas debates a year later, then-U.S. Senate candidate Abraham Lincoln railed against the Dred Scott decision, called on Congress to overrule it, and rejected the idea the Court had the last word on the constitution.

Even after the post-Civil War amendments, particularly the Fourteenth Amendment’s first sentence overruling Dred Scott by declaring everyone born in the United States was a citizen, the Court continued to claim to have the last word on the Constitution. As scholars Nikolas Bowie and Daphna Renan have shown, the Court undermined the Fourteenth Amendment’s promise of equal citizenship during Reconstruction and the late 19th century and usurped the Reconstruction Congress’s power to enforce the amendment through legislation.

During the first few decades of the 20th century, liberals opposed judicial supremacy for economic reasons. The Court struck down state and federal laws establishing minimum wages and maximum hours, outlawing child labor, and protecting the right to unionize. Liberal hostility to the judiciary reached a fever pitch in 1935 and 1936 when an extremely conservative Court invalidated Franklin Roosevelt’s New Deal programs — cabining Congress’s power to regulate interstate commerce and Congress’s granting of power to administrative agencies. The Court also struck down state minimum wage laws by insisting that the Fourteenth Amendment’s Due Process Clause included a “liberty of contract.” Everything changed in 1937 when Roosevelt proposed his court-packing plan, the Court stopped invalidating federal and state economic legislation, and Roosevelt began nominating new justices. Attorney General (and future Supreme Court justice) Robert H. Jackson chronicled the clash with the Court in a 1941 bestselling book, The Struggle for Judicial Supremacy.

Liberals, however, seemed to forget their hard-fought victory over judicial supremacy. During the 1950s and 1960s, the Warren Court revived judicial supremacy as it attempted to fulfill the Fourteenth Amendment’s promise of equal citizenship. The Court’s landmark 1954 decision in Brown v. Board of Education, however, is not an example of judicial overreach. Brown was limited to racially “separate but equal” public schools because of the increasing importance of public education in American life. It did not overrule the Court’s infamous 1896 decision in Plessy v. Ferguson permitting racially separate railroad cars. Moreover, Brown was based on twelve years of NAACP legal victories and Supreme Court precedent about graduate and professional schools. If anything, Brown was a modest and minimalist decision.

The Warren Court’s efforts to enforce Brown, however, led to its claims of judicial supremacy. In Cooper v. Aaron, a 1958 school desegregation case, Arkansas governor Orval Faubus flouted a federal court order and ordered the Arkansas National Guard to block nine Black students from desegregating Little Rock’s Central High School. Rather than simply uphold the rule of law, the Court unanimously declared that it was “supreme in the exposition of the law of the Constitution.”

The Warren Court’s support for judicial supremacy was the “say what the law is” line in Marbury. Although Marbury declared an insignificant federal jurisdictional provision unconstitutional, Chief Justice John Marshall bent over backwards to avoid a showdown with President Thomas Jefferson and Secretary of State James Madison over whether William Marbury was entitled to his commission as a District of Columbia justice of the peace. (Marshall held that Marbury was entitled to his commission, but ruled against him on the technicality that he had filed his lawsuit in the wrong court.) In fact, Marbury was part of the Marshall Court’s efforts to avoid a showdown with the more powerful legislative and executive branches; Marbury, as Larry Kramer explained to Ezra Klein, certainly wasn’t an example of judicial supremacy.

Despite its misreading of Marbury, the Warren Court doubled down on judicial supremacy. In its 1962 decision in Baker v. Carr, ordering Tennessee to reapportion its state legislative districts favoring rural over urban voters, the Court declared itself the “ultimate constitutional interpreter.” In Baker, the Court also eviscerated the political question doctrine — the idea that the Court should stay out of inherently political disputes better decided by elected officials, not unelected judges.

Once it seized the power from the legislative and executive branches to have the final say over the Constitution, the Supreme Court was loath to give it back. Liberal and conservative justices invoked Marbury’s “say what the law is” line to justify a whole host of decisions weakening the other branches. The other branches and the public, moreover, have to come to accept the idea that nine unelected and unaccountable justices should have the last word on the Constitution. Larry Kramer describes it as “the rise of the cult of the court.”

What can liberals do to end judicial supremacy?

Many people on the left have focused on increasing the number of Supreme Court justices. Liberal and conservative legal scholars have endorsed limiting their life tenure to unrenewable 18-year terms. There is, however, a third way. The Constitution grants Congress the power to determine the types of appeals the Supreme Court (and all federal courts) can hear. Congress could pass a law preventing the Court from hearing appeals about abortion, affirmative action, campaign finance, gun rights and voting rights. Instead, Congress could make the more liberal D.C. Circuit the court of last resort on these issues. In fact, Congress has done it before, designating the D.C. Circuit to hear the final appeals about the detention of suspected terrorists at Guantanamo Bay.

If the idea of stripping the Supreme Court’s jurisdiction to hear certain appeals seems too extreme, there are more everyday solutions. Congress and the Executive branch can challenge the Court’s unfounded assertions of judicial supremacy, exercise their co-equal roles in interpreting the Constitution, and override some of the Court’s decisions by passing new legislation.

It is not too late to put the genie of judicial supremacy back in the bottle and to return policymaking and constitutional enforcement where it belongs – with the American people and their elected representatives. Our democracy depends upon it.