The arguments in favor of the end of judicial review

Forget packing the pitch. What if the Supreme Court of the United States was castrated instead?

It’s a possibility. A presidential commission examining court reforms last Wednesday heard from Nikolas Bowie, an associate professor at Harvard Law School. He argued it was time to end the High Court’s ‘judicial review’ power, which gives it the power to declare a law unconstitutional and thus usually gives SCOTUS the last word in battles with the legislature. and executive.

The Supreme Court’s “relationship to Congress is not that of an umpire overseeing a batter, but of a rider overseeing a horse,” Bowie told the commission in his written testimony. “Most of the time, the court gives free rein to Congress to do as it pleases. But the court remains in the saddle, ready to pull the reins when Congress decides to upset the hierarchies of wealth or status.”

When President Biden appointed the commission in April, public and media attention was mostly focused on progressive hopes to fill the court with additional judges — the new seats to be filled by Democratic appointees, of course – and to reverse the court’s conservative tilt. As Bowie’s testimony indicates, the commission is actually considering a much wider range of possible changes within the judiciary.

And the conversation involves more than just technical changes, like the size of courts or term limits for judges. Instead, it strikes at the very heart of the Supreme Court’s role in American governance, politics and culture. Without judicial review, can the court be the court?

Judicial review, of course, is nowhere explicitly mentioned in the Constitution – the court asserted that this authority for itself Marbury v. Madison in 1803. “It is emphatically the duty of the Judicial Department to say what the law is,” Chief Justice John Marshall wrote in the ruling. The precedent exists for more than 200 years.

Whether this is the case is now an open question. Noah Feldman, Harvard law professor and Bloomberg review columnist, acknowledged in his own testimony that judicial review had made the Supreme Court more powerful than the Founders intended. “It is therefore fair to say that the founding generation did not fully anticipate the modern practice of rigorous judicial review,” he said, “which both empowers the judiciary to protect the rights and democratic standards and simultaneously makes the judiciary more capable of undermining democracy than it otherwise would be.”

Bowie argued that the Supreme Court has, in fact, harmed democracy and set back the cause of political equality. Over the past two centuries, the Court has used its power to strike down or restrict federal laws that limited the spread of slavery, discouraged child labor, protected the right to vote, and limited the role of big money in politics. Defenders of Supreme Court power say justices can protect political minorities from congressional attempts to encroach on their rights, but Bowie said the theory has rarely worked in practice.

“The court has been silent at best as Congress and the President have violently dispossessed Native tribes, excluded Chinese immigrants, persecuted political dissidents, denied civil rights to American citizens in the territories, and barred Muslim refugees,” a- he declared. Combined with the life terms of judges, he said, “the political choices available to us as a country do not depend on our collective will, but on the will of the people who hold office until upon their resignation or their death.This is precisely what the Declaration of Independence protested.

Bowie’s comments reflect growing progressive skepticism of the Supreme Court’s powers, a trend that may have started when the court struck down part of the Voting Rights Act in 2013, and slackened. accelerated in recent years as Republicans cemented a 6-3 supermajority on the high court. , sparked by their refusal to hold a vote on Merrick Garland’s 2016 court nomination. After last Thursday’s controversial voting rights ruling, Democrats are even more motivated to rein in the court. “The United States may not be a ‘pure democracy,’ but neither is it a judgeocracy,” The New York Times” wrote Jamelle Bouie last year. Her complaint echoed the Republican cries of “judicial activism” and “judicial tyranny” that were common even 10 years ago, when gay marriage was progressing through the courts, but which seem having mostly waned as court conservatives strengthened their power.

The current debate raises some questions. If the Supreme Court didn’t have the final say on constitutional disputes, who would? (Bowie noted that the UK and Switzerland are democracies that have done well without courts with similar powers.) And how, exactly, could judicial review be ended? SCOTUS unlikely to reverse marbury alone – who voluntarily renounces his authority? — and a Senate that can’t even fix itself by undoing the filibuster probably won’t find a way to radically recompose the Court’s powers.

Maybe that’s just as well. “We collectively have much more to gain from preserving the Supreme Court’s institutional legitimacy than from breaking it,” Feldman said in his testimony. “Whatever alternative conceptions might have existed in theory, undermining this power would, in practice, leave the current system without an institutional actor capable of protecting the rule of law, fundamental rights or the structure of democracy and motivated to do so. TO DO.” After 200 years, it may be too late – and too messy – to dismiss the highest court in the land.