The Supreme Court Isn't Supposed to be this PowerfulRoundup
tags: legal history, Supreme Court, Judicial Review, Civil Rights Cases
Nikolas Bowie is a professor at Harvard Law School. Daphna Renan is a professor at Harvard Law School.
It’s June again—that time of year when Americans wake up each morning and wait for the Supreme Court to resolve our deepest political disagreements. To decide what the Constitution says about our bodily autonomy, our power to avert climate change, and our ability to protect children from guns, the nation turns not to members of Congress—elected by us—but to five oracles in robes.
This annual observance of judicial supremacy—the idea that the Supreme Court has the final say about what our Constitution allows—is an odd affliction for a nation that will close the month ready to celebrate our independence from an unelected monarch. From one perspective, our acceptance of this supremacy reflects a sense that our political system is simply too broken to address the most urgent questions that we confront. But it would be a mistake to see judicial supremacy as a mere symptom of our politics and not a cause.
Contrary to what many people have come to believe, judicial supremacy is not in the Constitution, and does not date from the founding era. It took hold of American politics only after the Civil War, when the Court overruled Congress’s judgment that the Constitution demanded civil-rights and voting laws. The Court has spent the 150 years since sapping our national representatives of the power to issue national rules. These judicial decisions have destroyed guardrails that national majorities deemed vital to a functional, multiracial democracy—including protecting the right to vote and curbing the influence of money in politics. Even worse, the Court’s assertion of the power to invalidate federal laws has stripped Americans of the expectation, once widely shared, that the most important interpretations of the Constitution are expressed not by judicial decree but by the participation of “We, the People,” in enacting national legislation.
In the decades before the Civil War, when national parties violently contested the constitutionality of slavery west of the Mississippi, the center of gravity was Congress. As the historian James Oakes recounts, when a border-state senator proposed asking the Supreme Court to decide the issue in 1848, other senators ridiculed his idea as implausible. “The Constitution was interpreted as variously as the Bible,” Senator John P. Hale of New Hampshire responded. White southerners believed “the Constitution carries slavery with it,” while northerners construed the Constitution “to secure freedom.” As Hale and his contemporaries appreciated, resolving such a fundamental national disagreement could never turn on a court’s answer to which interpretation was more correct. Rather, the winning interpretation would depend on whether adherents could build sufficient political majorities to control the national government.
The Supreme Court did attempt to decide the question in its infamous 1857 Dred Scott decision—interpreting the Constitution to hold that the federal government lacked the power to abolish slavery anywhere in the United States. But rather than accept this novel assertion of judicial supremacy over Congress, the Republican Party responded with defiance. Indeed, Abraham Lincoln successfully ran for president on a platform of repudiating the Court with national legislation. In his inaugural address, he remarked that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
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