We Need To Talk About Judicial Review

Strict Scrutiny

In this episode of Strict Scrutiny, host Leah discusses judicial review and the historical evolution of Supreme Court power with Harvard Law professors Nikolas

Key takeaways

• The Supreme Court's power of judicial review was not constitutionally mandated but evolved through political and legal strategy.
• During Reconstruction, Congress actively challenged the Court's authority, including by altering court structure and proposing limits on judicial review.

Main topics

• Judicial review and its historical origins
• Reconstruction-era efforts to constrain the Supreme Court

Notable quotes

The court doesn't have this power, but it does give us a lot of power.

Conclusion

The episode concludes with a call to reclaim democratic accountability by

Transcript preview

Speaker 7 (0:00) Strict scrutiny is brought to you by Americans United for separation of church and state. It's back to school season. And this year, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for separation of church and state, are taking the fight to the Supreme Court. And they need you to amplify their voices before the Supreme Court gets its hands on this case. And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this. Speaker 1 (0:40) They're going to go up, but... We're going to fight to get him taken down. Speaker 7 (0:45) That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian. And their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies, like these Ten Commandments laws and the decisions the Supreme Court hands down. Every child deserves access to public education where they aren't subject to state-imposed religion or religious instruction or coercion. Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit au.org. 10C to learn more about this case and how you can help join the fight to protect church-state separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back. Speaker 3 (1:54) She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Speaker 7 (2:24) Hi, everyone. I'm here with Nico Bouy and Daphne Renan, professors at Harvard Law School and the authors of the great new book, Supremacy, How Rule by the Court Replaced Government by the People. Welcome back to Strict Scrutiny, Nico and Daphne. Speaker 2 (2:37) Thanks for having us. Speaker 7 (2:38) Thanks for having us. I say welcome back, of course, because on our regular episode Monday, we had a conversation about your fabulous new book, Supremacy. And this is in some ways part two of that conversation. styled as part of our hot SCOTUS reform September series. Since you all literally just wrote the book on the topic, I wanted to speak with you about the Supreme Court reform that is a key subject of your book. And that is, you know, what to do about the Supreme Court's power of judicial review, the court's power to decline to enforce a federal statute. OK, so ready to get started again? Yeah. Awesome. And just a reminder to everyone, I love this book so much. We are doing a giveaway. It will run through tomorrow, Friday, 5 Eastern. If you purchase the book, you can enter the giveaway link in the show notes, upload a copy of your receipt and get a T-shirt or a mug. Okay. So. I will continue where we left off the conversation, which was we were talking about how in the period immediately before and after Dred Scott, you know, judicial supremacy became embraced as a mechanism to further white supremacy as the Supreme Court kind of entered its Eric Cartman era, you know, saying, I am the authority, you know, and white supremacists were like, yes, you are, since you are on our side. So I wanted to then ask you kind of, well, what happened after that, you know, after Dred Scott? you know, who kind of comes to embrace these ideas of judicial supremacy and who picks up on them, you know, and has continued to embrace them ever since? I realize those are big questions, but one of you can decide to tackle them first. Speaker 2 (4:11) So when the court decided Dred Scott, it was using a power that the Constitution doesn't refer to. It doesn't talk about it. Nothing gives the court the power to regulate Congress. But one thing that the opponents of slavery understood is that the Constitution gives Congress a lot of authority to regulate the court explicitly. And so when thinking about how do we abolish slavery or ban the spread of slavery when the Supreme Court is so hostile to our goal, the early Republicans, the people who founded the Republican Party, really drew upon all of the things the Constitution authorizes Congress to do. And they understood that the Supreme Court can only act in a way that Congress permits. The court doesn't have this sort of, you know, floating abstract power. It didn't just descend from, you know, the mountains and announce that it has this unregulatable authority. But see Sam Alito's interview Speaker 7 (5:16) in the Wall Street Journal, but we'll put that to the side. He Speaker 2 (5:18) might think Speaker 7 (5:18) that. Right. He can think whatever he wants. He's like, I'm the Speaker 2 (5:21) only one willing to say it because you didn't read the document. And the document says that here's Congress's power. And so one thing that Congress did was it just ignored the court. So in 1862, Congress did precisely what Dred Scott said it could not do, which is ban the spread of slavery in federal territory. Full stop. There was no... constitutional amendment, no waiting for the justices to die. They just did what they wanted because they had that authority. Abraham Lincoln was assassinated and replaced by a white supremacist. Congress changed the number of justices on the court because they didn't want this new President Johnson to appoint people who would threaten its new laws. When Congress passed legislation to protect the right to vote for Black men in the South, and it looked like the court might get in the way. The author of the 14th Amendment, John Bingham, said, I don't think the court should be able to invalidate federal laws unless a supermajority of the justices think the law is unconstitutional. And the House passed that bill. But then when it got to the Senate, the author of the 13th Amendment was like, I don't know if that goes far enough. I think that the court shouldn't have the power. to even assess this law. The Reconstruction Act is a political question. Its constitutionality is up to us. The court shouldn't get in the way. I Speaker 7 (6:44) would love, just sorry to interrupt, to have a debate and discussion with the Reconstructionists about what legislation goes far enough vis-a-vis the Supreme Court. Because this sounds Speaker 2 (6:54) awesome. That Speaker 4 (6:55) was literally Speaker 2 (6:55) the debate. I mean, that's kind of what was amazing about researching this book is there are all of these people quite candidly saying, Speaker 2 (7:04) The court doesn't have this power, but it does give us a lot of power. My favorite, by the way, version of this was... The senator from Oklahoma, Robert Owen, he's the person who authored the first ban on child labor. He also happened to author the bill creating the Federal Reserve. And after the court struck down the child labor bill, he was so mad that he proposed a bill that said, look, the justices don't get to serve for life. They get to serve during good behavior. And who gets to decide what good behavior is? We do. And so if a judge defies federal law, that's not acting with good behavior anymore. We're going to take that as a sign the judge doesn't want to keep their job and has resigned. Speaker 7 (7:47) Quiet quitting. Speaker 2 (7:49) Yeah, exactly. And so part of what we found is just that there's this rich tapestry of people in Congress and outside of it who understood that the Constitution ultimately. is interpreted by the people. And the people elect members of Congress to give that interpretation light. And it is the role of the court to enforce that interpretation. It is not the role of the court to defy it. And so Congress's power includes the power to strip the court of jurisdiction, to say when it can intervene, how many justices does it need to make a decision. What kinds of powers does it have? How many justices sit on the court? Do they have clerks? Do they have air conditioning? Where is their building? All of that is up to federal law to decide. Speaker 7 (8:41) Definitely. Do you want to kind of weigh in on this? You know, where did this movement for judicial supremacy go after Dred Scott and like who picked up on it? Speaker 6 (8:51) Yeah. So who picked up on it is. former Confederates that were trying to reclaim an old vision of the Constitution through a very targeted litigation strategy culminating in the Supreme Court. And also a kind of war of ideas, as one of them wrote in The Lost Cause, that became a kind of tract that was putting forward the ideology that what we had was a reckless Congress because as the As Reconstruction unfolds, Congress is passing the first civil rights laws, the first vote protections, the first agencies administering what they term practical freedom. And so the ideology is, look, what we have is a reckless Congress. It's run amok. It's given up on the constitutional tradition. And what we need is a Supreme Court that can reclaim the Constitution as it was. So that is the vision that... underwrites the rise of judicial supremacy at this period. And the Republican Party comes into being in opposition to that vision. So you see Abraham Lincoln is kind of trying to think of... what would it make sense of this creed of judicial supremacy, actually, as the Supreme Court's deciding Dred Scott. And there are these scraps of his notes that he's saying, well, what would it mean if this were actually the dominant creed that the Supreme Court gets to decide the question of whether Congress can restrict the spread of slavery in the territories or not? And he says, and judicial supremacy wouldn't just require that. It would actually require us to obey, not just the parties and the litigation, but all of us, the whole community, all of Congress, all of government to obey. the court on any constitutional question. Speaker 7 (10:30) And Speaker 6 (10:31) he thinks like, how is this compatible with American constitutional democracy? So Lincoln kind of rises to power, making a name for himself in debates in Illinois, where he is taking the position that this cannot be our constitutional creed. that the judicial supremacy, giving this kind of power to the court, is not a viable strategy for building a meaningful democratic republic in the United States. And it becomes the founding creed of the Republican Party, which really stands in opposition to what they term again and again, is they will not stand for another, a second Dred Scott decision. So those become the politics of the nation as it is. building multiracial democracy in the United States for the first time. Speaker 7 (11:17) So just want to pick up on something you said. You described how this was part of the Lost Cause movement, which, of course, is the movement to try to restore the former Confederacy to power. And as part of that, there were efforts to depict the former Confederacy as fighting over a cause besides slavery. You know, and it oftentimes gets chalked up to federal overreach. And that kind of becomes part of this narrative that you were talking about, whereby the Reconstruction Congress, they like went too far. Right. They were running roughshod over. the Constitution and doing things like trying to check the Supreme Court or limit, you know, a white supremacist president. And if that narrative sounds familiar, of course, this is a narrative that found its way into a Supreme Court decision last term, you know, Trump versus Slaughter, where the chief justice writes describing a reconstruction. Congress effort to constrain the powers of Andrew Johnson by preventing him from firing federal officials who are charged with implementing Reconstruction as something everybody recognizes, right, was like this gross violation of the Constitution that had to be stopped. Okay, so sorry, that was a bit of a tangent. And Speaker 6 (12:26) Myers, which is kind of the foundational Supreme Court case that begins this trajectory of the unitary executive in American... doctrine, is really Chief Justice Taft relitigating the Tenure of Office Act and saying, I need to do penance for