Nikolas Bowie, PhD '18, is the Louis D. Brandeis Professor of Law at Harvard Law School (HLS) and a legal historian whose work examines democratic governance and constitutional power. His forthcoming book, Supremacy: How Rule by the Court Replaced Government by the People, co-authored by his HLS colleague, Daphna Renan, argues that the modern Supreme Court's claim to final say over the Constitution is neither required by the document nor inevitable. The alternative he offers—democratic constitutionalism—would restore Congress's role in defining and defending Americans' rights.
You've written that the United States Supreme Court often invokes "history and tradition" selectively. How do you assess modern originalism?
Originalism in its modern, rule-like form surged after Brown v. Board of Education (1954). Critics asked whether the framers of the Fourteenth Amendment intended to end school segregation. The historical record is complicated. Congress in the 1860s passed sweeping civil-rights statutes; the Supreme Court soon invalidated many of them. When NAACP lawyers litigated Brown, they relied in part on the 1871 Ku Klux Klan Act—Congress's instruction to federal courts to remedy constitutional violations by state actors. Opponents spotlighted fragments suggesting the framers did not speak specifically to schools. That pattern persists. Take the affirmative-action cases: a concurrence argued that Reconstruction-era legislators would not have approved race-conscious remedies—yet those same legislators extended the Freedmen's Bureau and enacted statutes that expressly protected "freedmen," a race-conscious category if ever there was one. Or consider New York State Rifle & Pistol Association v. Bruen (2022), where the majority read centuries-old English sources to invalidate a modern licensing regime while discounting contrary evidence and practice. The point is not that history is irrelevant; it is that treating contested snippets as dispositive often masks normative choices. Historians are trained to contend with all the evidence, not proof-text their way to a preferred outcome. Judges, too often, do the latter.
Your forthcoming book with HLS professor Daphna Renan argues that "judicial supremacy"—the Court's final say over constitutional meaning—is neither required by the Constitution nor wise. What is the alternative?
The Constitution nowhere grants the Supreme Court power to invalidate federal statutes. For much of our history, such a claim would have been viewed as tyrannical: five lawyers setting aside the work of hundreds of representatives. The first blockbuster invalidation of a federal law—Dred Scott—barred Congress from restricting slavery's spread and was celebrated by slaveholders as constitutional truth. Republicans responded politically: they passed laws directly contrary to Dred Scott's holding and protected those laws from judicial sabotage. Reconstruction embodied a different settlement—what we call democratic constitutionalism. Congress and the people, not an unelected judiciary, would define and defend constitutional rights. Congress passed the first civil-rights and voting-rights acts, stripped the Court's jurisdiction to block Reconstruction when necessary, and treated enforcement power as belonging to the political branches. Since then, the Court's record in reviewing federal statutes has been lopsided. It has struck down child-labor laws, income taxes, minimum wages, and major civil-rights protections, while green-lighting some of the federal government's most unjust policies, from Native dispossession to Chinese exclusion. More recently, decisions have narrowed the Voting Rights Act and campaign-finance limits and expanded presidential insulation from accountability. A stark example is Trump v. United States (2024), where the Court held that a president is criminally immune for "official acts.". What counts as "official"?. Under judicial supremacy, whatever five justices say. That move invites a government of individuals rather than laws.
If judicial supremacy is not inevitable, what can Congress do—especially in a polarized era?
History supplies a toolkit. Congress can legislate constitutional meaning and insist the courts respect it. When Federalists packed the judiciary after Jefferson's election, the new Congress abolished the new judgeships—and the Court acquiesced. During Reconstruction, when the Court threatened Congress's program, Congress stripped jurisdiction over core questions and enacted enforcement statutes that directed federal courts to remedy state violations. Those instruments remain available. Congress can define and protect rights legislatively (for example, in voting and election administration) and tie federal jurisdiction to those definitions. It can adjust the Court's structure and process by requiring a supermajority to invalidate federal statutes; limiting the emergency docket; regulating remedies; setting recusal and ethics rules; and, yes, altering the number of justices. Congress can also use jurisdictional tools, channeling certain constitutional questions to three-judge district courts with direct appeal and limiting or removing Supreme Court review in specified statutory contexts consistent with Article III. Finally, they can condition federal funding and enforcement to ensure that civil-rights statutes operate as enacted, not as narrowed by judicial invention. None of this requires agreeing with the Court's constitutional theories. It requires confidence that, in a republic, the people acting through Congress have primary responsibility to say what our fundamental law means and how it is enforced.
Harvard Law School
Louis D. Brandeis Professor of Law, 2022–Present
Assistant Professor of Law, 2018–2022
Reginald Lewis Law Teaching Fellow, 2017–2018
Berger-Howe Legal History Fellow, 2016–2017
Supreme Court of the United States
Law Clerk to Justice Sonia Sotomayor, 2015–2016
US Court of Appeals for the Sixth Circuit
Law Clerk to Judge Jeffrey Sutton, 2014–2015
Harvard University
PhD, History, 2018
JD, 2014
Yale University
Banner Image by Lorin Granger
