Why Let the Supreme Court Dominate Democracy?Roundup
tags: Supreme Court, democracy, Judicial Review
Nikolas Bowie is an assistant professor of law at Harvard Law School, where he teaches federal and state constitutional law and local government law.
This essay was adapted from testimony delivered to the Presidential Commission on the Supreme Court of the United States.
The United States calls itself the world’s oldest democracy, which would be true if the world began in 1965. That was the year John Lewis marched to the Edmund Pettus Bridge, the president said “We shall overcome” and Congress passed the Voting Rights Act, which allowed many citizens to exercise their right to vote for the first time.
Yet the legislation of 1965 wasn’t Congress’s first attempt to build a multiracial democracy. A century earlier, lawmakers enacted a half-dozen laws that protected the right to vote, punished political violence, and banned racial discrimination in public places. But as Frederick Douglass lamented in 1883, those laws were “grievously wounded” and cut down during his lifetime. Their assassin was the Supreme Court.
“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders” the court wrote in 1876, as it struck down the first federal voting rights act. “It does not appear that it was their intent to interfere with any right granted or secured by the constitution,” the court wrote that same year of a White mob that murdered more than 100 Black voters. “A name on a piece of paper will not defeat them,” the court wrote in 1903, as it explained why federal law was powerless to stop “the great mass of the white population [that] intends to keep the blacks from voting.”
Because the Supreme Court undermined or ignored Congress’s attempts to enforce the Constitution, the racial caste system that we know as Jim Crow emerged like an invasive species. With the court’s approval, White people in the South terrorized Black voters, disenfranchised them and enacted state laws to codify their place at the bottom of a racial hierarchy.
Today, as American democracy enters a midlife crisis, the Supreme Court has often been heralded as democracy’s guardian. Decisions dating from 1954’s Brown v. Board of Education are seen by many as essential responses to the tyranny of the majority. Yet it appears that the court has reverted to its older ways. In 2013, a justice sneered at Congress’s nearly unanimous reauthorization of the Voting Rights Act, calling it the “perpetuation of a racial entitlement.” He was soon joined by four of his colleagues in the Shelby County decision, which treated a central provision of the Voting Rights Act as beyond Congress’s power to enact “appropriate” legislation. And in its Brnovich decision this month, the court stuck a second dagger into the act, calling it too “radical” to be enforced as written.
In the wake of these decisions — as before — Jim Crow laws are reemerging. By declining to enforce federal laws because it disagrees with Congress about whether they’re constitutionally appropriate, the Supreme Court has functioned as an antidemocratic institution that produces antidemocratic results.
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