De-Supremify the Supreme Court with Niko Bowie and Daphna Renan

5-4

In this episode of 5-4, hosts interview Harvard Law professors Niko Bui and Daphna Renan about their new book, Supremacy. The discussion exp

Key takeaways

• Judicial supremacy is a historically novel construct rather than a mandatory constitutional requirement.
• The concept of judicial supremacy was utilized during the Dred Scott era as a tool for enforcing white supremacy.

Main topics

• Judicial Supremacy
• Democratic Constitutionalism

Notable quotes

The Constitution does not belong to them.

Conclusion

The episode challenges listeners to rethink the balance of power betwe

Transcript preview

Speaker 4 (0:03) Hey, everyone. This is Leon from Prologue Projects. On today's special episode of 5 to 4, Peter, Rhiannon, and Michael are interviewing friends of the pod and Harvard Law professors Nico Bui and Daphna Renan about their book, Supremacy, How Rule by the Court Replaced Government by the People. Now, you may have noticed a vibe shift going on politically when it comes to the Supreme Court. More and more politicians and legal analysts are admitting that something is really wrong. And remedies that were once considered radical, like court packing, are becoming more mainstream. Miko and Daphna have another idea for a remedy. Letting Congress take back power from a court that has over 200 years established judicial supremacy as the law of the land. This is 5 to 4, a podcast about how much the Supreme Court sucks. Speaker 6 (1:00) Welcome to 5 to 4, where we dissect and analyze the Supreme Court cases that have bankrupted our nation, like a lesbian bar in Massachusetts. Speaker 3 (1:08) I'm Speaker 6 (1:08) Peter. I'm here with Michael. Speaker 3 (1:10) Hi, everybody. And Rhiannon. Speaker 6 (1:12) Hello. So Speaker 3 (1:13) I'm out of the loop on this again. Is the bar bankrupting Western Massachusetts or are people bankrupting the bar? What's going on? Great Speaker 6 (1:21) question. The Boston Globe dropped a story about a lesbian bar in Western Massachusetts. which is apparently, and I didn't know this, a hotspot of lesbian activity. A Speaker 2 (1:35) hotbed of radical woke thinking. I Speaker 6 (1:37) thought it was just a bunch of fucking hicks out there in Western Massachusetts. Now, this piece, I want to be clear, is basically a bad faith piece meant to gawk at everyone involved in that. And you have to keep that in mind. It is essentially reactionary propaganda. Look at these freaks. Speaker 3 (1:58) Yeah. Speaker 6 (1:58) That said, it is objectively funny. That's why it's such good propaganda. Speaker 6 (2:05) And the basic story is that there's a queer bar in Western Massachusetts, and they opened a couple of years ago as a masks mandatory bar sort of pitching themselves as like we take COVID seriously and they're losing money. And so eventually they realized if we want to make money, we need to like open up one night, like a big night to people who aren't wearing masks. So they put out an announcement saying. Hey, from now on, Saturdays are masks optional. Big uproar. Speaker 4 (2:36) You're, Speaker 6 (2:36) you know, you're being Speaker 4 (2:37) ableist. You're throwing us under the bus. All that, all that. And then it like in sort of classic Speaker 6 (2:42) lefty fashion, it devolved from there where like they're doing like community meetings and they're like bad faith lefties who are like. This is violence. Yes. Everyone's saying this is violence. There's a bit where the owner of the bar is like, like I'm $50,000. Right. in debt and like the bar is collapsing. And then there's a response that's like, you're centering yourself as a white person and it's racist. Speaker 2 (3:11) That's good. That's Speaker 6 (3:12) incredible. Speaker 2 (3:12) That's good. Speaker 6 (3:13) If I said to someone like I'm $50,000 in debt, like for this thing that we're discussing right now, and they were like, you're centering yourself, game over for you. Damn Speaker 3 (3:21) right. As the owner of the bar who's in debt, I am absolutely centering myself. Speaker 2 (3:27) Yeah. Speaker 6 (3:28) Either we're in a physical fist fight. Or I'm melting down on the spot screaming something like, I am the center. I am the center. Speaker 3 (3:37) I mean, that is like my first response is like all sympathy to people who felt safe because of the masking rules. But you got to drink there more. You got to spend more money there. You got to make it profitable for them or at least let them break even. Speaker 6 (3:51) Yeah, that's lesbian bar drama, which, by the way, the right wing media is running with. and is going to be the heart of the 2028 presidential campaign. Will you or will you not drone strike the lesbian bar in Western Massachusetts? All right. We actually have a couple of guests coming on the pod today. A couple of Harvard law professors, Nico Bowie and Daphna Renan. You Speaker 2 (4:21) said Harvard? Where is that? Harvard. Harvard. Harvard. In Speaker 6 (4:26) eastern Massachusetts. Eastern Massachusetts. It's a small Speaker 2 (4:31) state, though. Can't Speaker 3 (4:31) be Speaker 2 (4:31) that far. Bro, we should have asked them. We should Speaker 6 (4:33) have asked them about the lesbian. But Speaker 2 (4:35) instead, we were talking about judicial supremacy. Speaker 6 (4:39) Yeah. They wrote a book about judicial supremacy. The idea that the courts get to decide what the Constitution means. which, believe it or not, is not something that you have to believe. It's not mandatory to believe that courts decide what the Constitution means. Total Speaker 2 (4:55) construct. Speaker 6 (4:56) They talk about the origin of the idea and how it has sort of taken on this anti-democratic form in our government. And so, yeah, we wanted to talk to them because they're pitching a different understanding of the Constitution than I think 99 percent of Speaker 4 (5:12) the population has. Speaker 6 (5:15) It's an interesting one at a time when I think we need to be both on the left and as a broad society sort of just rethinking the relationship between the people, the courts, Congress, the president and the Constitution. Speaker 2 (5:27) Yeah, yeah. And the role that the federal judiciary plays in democracy is this construct and the way we've all now accepted it for decades and decades and decades. Is that actually democratic? Is that actually reflective of? what the founders were thinking and talking about, you know? And Speaker 3 (5:44) is it healthy? Speaker 2 (5:45) Exactly. Yeah. Speaker 6 (5:47) All right. Without further ado, here is our interview with Nico Bui and Daphna Renan. Say hi, guys. Say hi. Hello. Speaker 1 (5:55) Thanks for having us. Speaker 6 (5:57) You two are professors at Harvard Law School. Obviously, it's our position that there should never be more than one professor from Harvard Law in one place. But until there's a statute, I guess we're just going to do this. That's right. We're rule of law people at the end of the day. Speaker 5 (6:18) Norms are nothing. Yeah. You Speaker 6 (6:21) guys have a book, Supremacy, How Rule by the Court Replaced Government by the People, which I think is out now. Right. As this drops, it is out. And it's a book about. judicial supremacy and perhaps other types of supremacy, if I'm reading between the lines correctly there. And I think maybe it makes sense for one or both of you to explain to our audience what judicial supremacy is at a high level. Sure. So Speaker 5 (6:50) judicial supremacy is just the idea that when the Supreme Court interprets the Constitution, that's what the Constitution means. And so even if Congress passes a law saying we think the 15th Amendment empowers us to pass the Voting Rights Act. If five justices on the court say, actually, the 15th Amendment means something totally different, no, you're wrong, then we have to live with that until the Constitution is amended or the court changes its own mind. Speaker 6 (7:17) I think it's probably news to a lot of our listeners that there are people who question this framework. This is sort of how you come to understand the court's role, that it is the arbiter of what is constitutional and what is not. It's the arbiter of the meaning of federal statutes, etc. It is something that is historically somewhat novel. And you outline the origins of it and the coming of age of judicial supremacy in an interesting way, because I think a lot of defenders of the idea argue that it serves as a way to protect the little guy, to protect the rights of minorities. If a law is passed that might infringe upon someone's rights, a court steps in and says, no, you can't do that. That's unconstitutional. That violates the Constitution or a statute or whatever. But you describe judicial supremacy in the book as something that comes of age as a tool for enforcing white supremacy. You have Dred Scott, Reconstruction, and all throughout this period, the idea of judicial supremacy is being sort of. debated and utilized by reactionaries very expressly as a tool of white supremacy and not white supremacy in like an abstract 2026 kind of way, but in the sense that there were people arguing for it expressly in the 1850s, for example. So can you walk us through a sort of short version of that history where the debate about judicial supremacy is happening sort of at the same time as the debate around Dred Scott and slavery? Speaker 1 (8:56) Yeah. So the first time that the Supreme Court rejects the constitutional judgment reflected in a federal statute in a question of great consequence is Dred Scott. The 1857 case where the court basically says federal statutes limiting the spread of slavery in federal territory like the Missouri Compromise are unconstitutional in our view because they interfere with the property rights of enslavers. And this is really the moment where the court for the first time rejects an expressed judgment of Congress about what the Constitution allows it to do with its legislative authority. And the reaction to that among abolitionists and anti-slavery Republicans is not, OK, well, the court has said it, so that's the final word. And now we all need to accept that the Constitution doesn't allow Congress to limit the spread of slavery. It's organizing and voting and electing members of Congress that pass federal laws that, notwithstanding Dred Scott, limit the spread of slavery, extend birthright citizenship to Black Americans, which was the other crucial aspect of the Dred Scott holding, was a rejection of that, and say it's not just members of Congress's ability, it's their responsibility, it's their duty. to give meaning to the Constitution and to reject the interpretations of the Constitution from the Supreme Court that interfere with the vision of who we want our country to be and what we understand the Constitution to stand for. There's a party that kind of comes into being on this message that it would just defy self-government by the people to hand this power over to the court. And it's really instrumental in the way abolitionists