Colloquy Podcast: Has the Supreme Court Become Too Powerful?

Across the country, judges and justices are making decisions that reach back, sometimes centuries, to define what the Constitution means today. Whether it's gun rights, abortion, or voting laws, the Supreme Court increasingly relies on what it calls history and tradition to interpret the nation's founding documents. But what history, exactly? How reliable is it as a guide for a democracy in the 21st century? And should five justices—the least required for a majority decision—have the power to strike down laws passed by hundreds of legislators, elected by millions of citizens?

Here to help us explore these questions and what they reveal about the court, originalism, and the future of American democracy is Nikolas Bowie, PhD ’18, the Louis D. Brandeis Professor of Law at Harvard Law School (HLS), a historian of democracy, and a thought leader on how power really works in our constitutional system. His forthcoming book with his fellow author Daphna Renan, also an HLS professor, is called Supremacy: How Rule by the Court Replaced Government by the People.

So you're both a historian and a legal scholar, right? Before we get into the whole rationale for constitutional originalism—and I really want to take that seriously—do you see the test of history and tradition being applied consistently and accurately by the proponents of an originalist approach to the law?

No, and I have a few reasons for saying that. One is, there's another scholar, Calvin TerBeek, who wrote a piece on the history of originalism in the American Political Science Association journal. And one of the things that he looked at was, when did scholars start invoking either the original intent of the Constitution or the original public meaning of the Constitution as the main argument for how to interpret the Constitution?

And one of the places he looked and answered his own question was in the aftermath of Brown v. Board of Education in 1954. So in Brown, the Supreme Court held that the 14th Amendment, among other things, prohibited states and the District of Columbia, through the Fifth Amendment, from engaging in racial segregation in education. And when the court reached that conclusion, it was after a reargument in which the court asked the various litigants to research, what did the people who wrote the 14th Amendment think they were doing? Did they think that they were abolishing racial segregation?

It's a complicated history, in part because Congress in the 1860s was very involved with enacting all kinds of civil rights legislation. They banned racial discrimination in all kinds of places, including inns and theaters, but they didn't ban it in schools. But many of Congress's first laws that it enacted in the 1860s and 1870s were invalidated by the Supreme Court as misreadings of the 14th and 15th Amendments. So Congress wrote these new amendments, it interpreted the amendments to ban racial discrimination in various places, and the Supreme Court struck down those laws as inconsistent with the amendments.

So when folks in the NAACP side of Brown v. Board of Education looked through this history, one of their arguments was, well, Congress really was worried that states and local governments would enact all kinds of unconstitutional laws that they wouldn't be able to anticipate. And so one of the things that Congress passed—and this is the subject of a book that I'm writing with Daphna Renan called Supremacy: How Rule by the Court Replaced Government by the People, which really goes into this history—one of the things that the Congress was worried about was, we need to pass legislation that counteracts all the kinds of things that the court heard that states might do. One of the laws they passed is known as the Klan Act of 1871, which, among other things, said that anyone whose rights were violated by someone acting under color of state law could go to a court and achieve a remedy. That was the law that the NAACP used to get into court in Brown.

All of the cases that began in states began as acts to enforce or began as lawsuits to enforce the Klan Act of 1871. And part of the argument from the NAACP lawyers' perspective was Congress enacted this legislation to give courts discretion to determine what counts as a violation of a constitutional right by a state. Congress has asked the courts to enforce this to stop racial discrimination. Courts have ignored this law thus far, and it's time for courts to start enforcing this law as intended.

For opponents of Brown, that law was almost irrelevant. All that mattered was, did the people who were debating the 14th Amendment intend to stop racial segregation in schools? And some of the first people who called themselves originalists argued that the problem with Brown was it ignored the intent of the framers of the 14th Amendment in reading the amendment to ban racial segregation in schools.

So from its beginnings as something that scholars or judges might invoke in the 20th century, there was real disagreement about what is the original intent or the original public meaning of the 14th Amendment, but it was used as a real cudgel to attack not just Brown, but then a lot of the laws that Congress passed in the 1860s to really give life to the Constitution, like the Voting Rights Act of 1965 or the Civil Rights Act of 1964.

One of the pioneers of originalism was a man named Alfred Avins, who argued that the original intent of the authors of the 14th Amendment would have prohibited Congress from passing an anti-discrimination law or passing a law that required employers or places of public accommodation to cater to all races. And in looking at the original intent of the authors of the 14th Amendment, he had to figure out how do you deal with the people in Congress who wrote the 14th Amendment and then passed all these anti-discrimination laws. Part of his argument then was, "Well, I see that some people certainly thought the 14th Amendment allowed Congress to ban discrimination, but they were the radicals. The real people who I want to focus on are the conservatives." And the conservatives were backed up by the Supreme Court in the 1870s and 1880s. So really, if we want to know the original intent of the authors of the 14th Amendment, we have to look at the Supreme Court that invalidated a lot of their laws.

In trying to take historical documents or historical words, it's pretty easy to just take the words you want and say they justify the outcomes you want while ignoring all of the contrary evidence, which is not something that scholarly historians are allowed to do, but it is something that justices on the Supreme Court seem to do regularly.

I think at that time, that was a pretty unprincipled way of engaging in history and tradition. It was an attempt to try to use whatever language possibly could have been invoked to outlaw the Civil Rights Act of 1964, or Brown, or the Voting Rights Act of 1965 against it, despite what was a pretty clear current of what the ideas motivating Congress in the 1860s were. And I think that remains true for how originalism is often used today.

I think the best example of originalism in action in a way that seems unprincipled is Justice Thomas's opinion in the affirmative action case involving Harvard. He wrote a concurring opinion trying to explain why the authors of the 14th Amendment never would have allowed Congress or any state to engage in remedial legislation, meaning legislation that was designed in a race-conscious way to help people of color rather than to hurt them. And one of the obstacles he ran into was, well, the people who wrote the 14th Amendment also enacted legislation like extending the Freedmen's Bureau or the Civil Rights Act of 1866, which gave all citizens the same rights as white people. Some of this legislation is very race-conscious.

And he wrote, in his opinion, that when Congress legislated to protect freedmen, they were protecting a race-neutral category because not all Black people were enslaved, and so freedmen is not synonymous with Black people. And therefore, a law designed to protect freedmen was not, in fact, race-conscious. And therefore, the intent of the authors of the 14th Amendment was not to allow Congress to engage in race-conscious legislation, which means that they never would have approved of affirmative action programs that are race-conscious in their attempt to remedy racial injustice.

So that's one way of reading the evidence. I think it's not accurate. But it also just speaks to, in trying to take historical documents or historical words, it's pretty easy to just take the words you want and say they justify the outcomes you want while ignoring all of the contrary evidence, which is not something that scholarly historians are allowed to do, but it is something that justices on the Supreme Court seem to do regularly.

You mentioned your forthcoming book. I think you previewed it a little bit in a provocative piece you wrote for The New York Times last year, where you said that the Supreme Court has become too strong and that Congress might look to the country's first decades for examples of how to reassert its authority over the interpretation of the Constitution. First of all, I hope I characterized that correctly. Please correct me if I didn't. And can you unpack that argument for us? What impact do you think that recommendation would have in a political environment that's so deeply polarized right now?

The book that I coauthored with Daphna Renan, who also teaches at the law school, is again called Supremacy: How Rule by the Court Replaced Government by the People. And part of the book is a historical account of judicial supremacy—the idea that the Supreme Court should have the final say on what the Constitution means. And we argue that the Constitution does not require judicial supremacy. It says nothing about it. The Constitution gives the Supreme Court various powers, but does not give it the power to invalidate federal law.

For much of American history, the idea that the Supreme Court would have the ability to take a federal law and say, "We don't want to enforce it," would have been seen as tyrannical. You have hundreds of people in Congress enacting legislation that they think is constitutional, and you can have five lawyers who look at that law and say, "We don't feel like enforcing it today," and the law doesn't get enforced. That kind of dispensing with law can lead to real, horrible outcomes.

One of the first times the Supreme Court, in a very prominent way, invalidated a federal law was in 1857 in Dred Scott v. Sandford, in which it said that Congress lacked the power to restrict the spread of slavery. And they effectively said that the Republican Party's position at the time and their abolitionist allies' position—that Congress could restrict the spread of slavery—was unconstitutional. Southern newspapers celebrated, and they said, "Now that the Republicans run against us, they're really running against the Constitution." For Republicans at the time and for abolitionists, they thought that was a silly argument. It's not just because the Supreme Court has said this is what the Constitution means that it cannot possibly be what the Constitution means. This is the most important political issue in the country. It has to be resolved by politics.

When Abraham Lincoln was elected in 1860 and delivered his inaugural address, one of the main things he emphasized was that if we give to that eminent tribunal the power to decide the meaning of the Constitution, we will cease to be a government of citizens, we will cease to be a popular government, but will instead be just subject to their will. And for the Republican Party that then passed legislation in Congress, some of the first things they did were to try to override Dred Scott. They ignored it. They abolished slavery in the territories, even though the court said they couldn't do that. And they also protected their legislation from the judiciary because they were concerned that Roger Taney, still alive, and the court might try to do this again. And so we want to make sure that when we pass laws that protect the civil rights of formerly enslaved people, that start to protect the right to the franchise, the Supreme Court doesn't get in the way.

For much of American history, the idea that the Supreme Court would have the ability to take a federal law and say, "We don't want to enforce it," would have been seen as tyrannical.

Part of what we talk about in the book is they represented in Reconstruction a different form of constitutionalism: democratic constitutionalism, in which the final say of what the Constitution means should be decided by the people and their elected representatives in Congress, and not by an unelected judiciary. And during Reconstruction, Congress did things like pass the first Voting Rights Act, the first civil rights laws, lots of great legislation, but eventually, for a variety of reasons, Congress lost the ability to protect its legislation, and the Supreme Court started invalidating it.

If you look at the history of how the Supreme Court has evaluated federal legislation, it's a really one-sided story. Starting with Dred Scott, the Supreme Court struck down the first voting rights acts. It struck down civil rights laws. It struck down laws designed to limit the ability of states to disenfranchise their Black citizens. It struck down the first child labor laws that restricted child labor. It struck down the first income taxes as communistic. It struck down minimum wage laws, all kinds of federal legislation. And on the other side, when Congress has done things that are, by all accounts, horrible, including the dispossession of Native Americans and the Chinese Exclusion Act and other really just terrible laws, the Supreme Court has encouraged it. It has not stood in the way and said, "I'm sorry, you can't pass a Chinese Exclusion Act." It said, "No, all sovereigns have the ability to exclude Chinese immigrants."

So the court's power to invalidate federal law is something that was, in effect, seized by the court. It's not required by the Constitution or authorized by the Constitution, but it's cultural. By this point today, most people think this is the main role of the Supreme Court. And our book is an attempt to really change that story and say, actually, lots of people—from abolitionists through labor leaders and civil rights pioneers—all believed that Congress and the people's representatives in Congress should have the final say on what the Constitution means, not the court.

I think from the perspective of today, the court has restricted the operation of the Voting Rights Act, of campaign finance laws that prevent billionaires from controlling elections, that stop the president from firing whoever the president wants, and that restrict the president from sending troops wherever the president wants. Congress has passed lots of laws anticipating our current moment, and many of the most important laws are unenforceable because the Supreme Court's definition of what counts as appropriate legislation is different than Congress and the president's past interpretations of what counts as appropriate legislation.

In fact, the president cannot be held accountable for a crime if it is committed as an official act while he is president.

You're referring to a case last summer of Trump v. United States, in which the Supreme Court held that Congress could pass whatever criminal laws it wants that restrict the president from doing criminal behavior, and so long as the president is engaged in what the court calls an official act, the president is immune from criminal law. Congress cannot regulate that behavior. That's an obviously dangerous system, and it's one that generations of members of Congress thought was implausible.

When Congress impeached Andrew Johnson in the 1860s, he had, at the time, allegedly violated a law limiting his ability to fire subordinates. And he said, "Oh, I'm just violating this law so that the Supreme Court can weigh in." Members of Congress said, "That's ridiculous. You don't have any power to violate the law. No one does. What it means to be in a country that's governed by laws is people are subject to those laws until they are changed. So if you don't like the law, elect members of Congress who will repeal it. You don't just violate it."

What the court has in effect said about the president is actually there are lots of things the president can do that can violate the law. The president has all sorts of foreign power or foreign affairs powers that cannot be governed by Congress. The president has powers over the executive branch that Congress cannot regulate. So Congress might have rules that prohibit presidents from firing people because of politics, and the court has said, "I'm sorry, but that's possibly not enforceable."

With the recent case involving presidential immunity, with the law that Congress had passed that the president was accused of violating—laws protecting the peaceful transfer of power—the court said so long as the president is acting as the president and not as a person who happens to live in the White House but is acting in their personal capacity, so long as the president is doing something officially, the president can't be held accountable. And so what counts as an official act under a system of judicial supremacy? It's what five justices on a Supreme Court say is an official act. They have suggested that an official act can be as capacious as anything the president does because when the president is the president, it's hard for the president to act as anything but the president.

What would it look like for Congress to start to reclaim some of that power over constitutional interpretation and the rule of law from the Supreme Court?

Part of our book is a history of how we got here. It's a history of how did judicial supremacy become so dominant in American political culture that it's difficult to imagine alternatives. And part of it is reclaiming a countervailing tradition of democratic constitutionalism. When abolitionists, for example, in the 1840s and 1850s were arguing against the Supreme Court's power—whether it was in the context of the Fugitive Slave Clause or striking down Congress's limits on slavery in federal territory—the abolitionist position was it's ultimately always up to the people to decide what the Constitution means by electing members of Congress to interpret the Constitution differently.

That always remains true. I think what they said then remains true now: if the American people think that the way the Supreme Court is currently interpreting the Constitution is backwards, allowing too many powerful people to go without any accountability while inhibiting the ability of ordinary people to participate, then ultimately Congress can pass laws that just are different and represent different interpretations of the Constitution than the Supreme Court.

If Congress is worried that if we do this, the Supreme Court, of course, will try to invalidate those laws, American history is just full of examples of Congress protecting its legislation from the court. When Thomas Jefferson became president, one of the first things that the Federalist Party did after the election but before Jefferson took office was just create a bunch of new federal judges because they were worried, "Oh no, Thomas Jefferson's the first peaceful transition from one party to the next. We don't know what he's going to do. We want to have as many federal judges as we can because they're appointed for life and will be able to become obstacles in his way."

If Congress ultimately concludes that we can't have a democracy under these circumstances, our democracy depends on the ability of us to enact voting rights laws and to enforce them, regardless of what these five justices or six justices on the Supreme Court think—Congress has the power to protect this legislation.

The Jefferson administration and Congress looked at the situation and said, "These judges are partisan. This is just an attempt by Federalists to entrench themselves in power." And so they passed a law that just abolished all the new courts that the Federalist Party created. The Supreme Court, when it considered this law, looked around and said, "I don't know what you expect us to do about this, but we're going to uphold it because we're just going to enforce this law because we don't have any other power, like we don't have armies or the ability to resist the American people's will."

The court, the same week it upheld or enforced that law, issued its decision in Marbury v. Madison, in which the court interpreted a law that the first Congress passed in a very weird way and concluded, "We don't think that this law is constitutional," and said, "We have the power to decline to enforce laws and consider them void if we think that they are unconstitutional." But in some ways, that was the B-side of a record in which the A-side was the court saying, "But if Congress attempts to regulate the judiciary and that's what it means to do, we don't really have any other options but to enforce it."

During Reconstruction, when the Supreme Court looked like it might issue another Dred Scott decision and strike down Congress's Reconstruction Acts, Congress stripped the court of jurisdiction to decide that question. The people who wrote the 13th, 14th, and 15th Amendments, like Lyman Trumbull, also proposed legislation that said some legislation, some laws of Congress, are political questions that the Supreme Court just doesn't have the jurisdiction to second-guess the constitutionality of.

So Congress could increase the number of justices. It could strip the court of jurisdiction. It could change the way the court's building is funded. It could change how the court is allowed to make decisions. It could abolish the emergency docket. It could take away the court's power to issue writs or orders unless the court has a supermajority or a unanimous decision. The things that the Supreme Court does are subject to federal law.

And so, if Congress ultimately concludes that we can't have a democracy under these circumstances, our democracy depends on our ability to enact voting rights laws and to enforce them regardless of what these five justices or six justices on the Supreme Court think—Congress has the power to protect this legislation. It does not have to agree with the court about the Constitution, but, to the contrary, it can require states and the courts to respect its own vision.