We Need To Talk About Judicial Review

It's back to school season.

“And this year 5 million children across Texas are going to be greeted by the 10 Commandments in their classrooms.”

Yes, you heard that right. Texas politicians passed a law requiring the 10 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 a chance on this case.

And we all know what the fifth circuit did. Obviously they let Texas get away with all of this. They're going to go up, but we're going to fight to get him taken down. That's Texas Public School Parent Ted Low. Ted and Rebecca Low 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 10 Commandments laws.

“And the decisions the Supreme Court hands down.”

Every child deserves access to public education, where they aren't subject to state and pose 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. On and on there's the size of 2013. We're in Farad Bocleidung here. The greatest advantage of Shopify for me is that we have no technical issues for the country. We all know about the back end and the front end.

And as soon as we go to Dubai, the online shop. If you're in Farad, then you're in Farad for example. You're just like the grund. Our whole story is over in Farad. Now, let's start a constant test on Shopify.com.

She's small, 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 or far next. Hi, everyone. I'm here with Niko Buyi and Daphna Rennam.

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 Strixia, Niko and Daphna. Thanks for having us. 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. But style does part of our hot Scotist 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 what to do about the Supreme Court's power of judicial review. The court's power to decline to enforce a federal statute. So ready to get started again? Yeah. Awesome.

And just reminded everyone, I love this book so much. We are doing a giveaway. You can go through tomorrow Friday, five 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 a Supreme Court kind of entered its Eric Cartman era,

you know, saying I am the authority 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 and has continued to embrace them ever since.

I realize those are big questions.

But one of you can decide to tackle them first.

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.

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 announced that it has this unregulatable authority. But see, Samelitos, interview in the Wall Street Journal, and we'll put that to the side.

He might get that right if he could make whatever he wants. It's like I'm the only one willing to say it because you didn't read the documents. So 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 banned the spread of slavery and federal territory. They'll 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 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 would love just sorry to interrupt to have a debate in discussion with the Reconstructionist about what legislation goes far enough.

This is a framework. Literally, that was literally the debate.

I mean, that's kind of what was amazing about researching this book.

Is there all of these people quite candidly saying, "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 authored the bill creating the federal reserve.

And after the court struck down the child labor bill, he was so mad that he passed or 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 in his resigned. Quite clean. 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. 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? Yeah, so who picked up on it is former Confederates that we're trying to reclaim an old vision of the Constitution through a very targeted litigation strategy.

And culminating in the Supreme Court. And also kind of were of ideas as one of them wrote in the lost cause that became a kind of tracked that was putting forward the ideology that what we had was a reckless Congress.

Because as the, as we construction 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 like what we have is a reckless Congress. It's, it's run amuck. It's given up on the Constitutional tradition.

So that is the vision that underwrites the rise of judicial supremacy at this period.

And the Republican Party comes into being an opposition to that vision. So you see Abraham Lincoln is kind of trying to think of what, what it, to make sense of this. Creative judicial supremacy actually as the Supreme Court's deciding dreads got.

“And they're 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 and the territories are not. And he says, in 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. And you think, like, how is this compatible with American constitutional democracy? So Lincoln kind of rises to power, making a name for himself and 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, as they, they will not stand for another second-red Scott decision.

So, so those become the politics of the nation as it is building multiracial democracy in the United States for the first time. So just want to pick up on something you said, you described how this was part of the lost cost 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. And 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 Myers, which is kind of the foundational Supreme Court case that that begins this trajectory of the unitary executive in American doctrine, is really Chief Justice tapped, re-litigating the tenure of office act and saying, I need to do penance for the fact that I didn't see it before. But apologize on behalf of all Republicans, we did Andrew Johnson wrong. Exactly.

I'm not literally what he writes.

“Yes, you know, it's a paraphrase, but yeah, it's basically there.”

This episode of Strix scrutiny is brought to you by Aloy Health. Here's something nobody tells you. The skin changes that start in your forties aren't just aging. They're actually hormonal, specifically estrogen loss. Estrogen naturally helps maintain collagen, support elasticity and keeps skin hydrated as estrogen declines skin gets thinner, drier and more crappy. That means your expensive cleanser, your retinol, your moisturizer, none of them were actually designed to solve the problem, which is a hormonal problem.

Too many people tell me I looked tired and it's like, yeah, have you seen my Google calendar, but also I'm no longer 20 years old. So, my skin is kind of tired. It's also kind of dry from the 20 years old years of swimming at this point, so get off my case, bro.

The reality is skin can feel dull and dry after 40, but nobody told us our routines needed to change.

And in any case, solutions didn't really exist, but now they do. One solution is M4 skin care from Aloy. The first head to toe line of astral power skin care. Estriol is a safe gentle and bio-identical form of astrogen clinically proven to rebuild collagen, restore elasticity, and visibly reduce wrinkles. With the M4 face cream, 88% of users saw improved elasticity and with M4 body treatment, 95% felt smoother skin. The full line targets face, eyes, body, estrogen, power, skin care everywhere you notice changes.

It's prescription strength without the appointment's pharmacy trips or insurance hassle, and it's HSA and FSA eligible delivered free to your door. Here's how it works. First, you complete your intake. M4 is available by prescription, so you'll start with a quick online form. Next, you get your prescription. You'll be matched with a menopause specialized physician who reviews your intake and prescribes what's right for your skin.

Finally, M4 is delivered to your door. Once it's approved, your prescription ships trait to you. No pharmacy, no hassle.

Try M4 skin care from Aloy and see results in as little as eight weeks. Head to myaloid.com and use the code strict to get $20 off your first order. Your menopause specialized doctor will tailor your skin care to your needs. Plus, you get zero dollar unlimited messaging with your doctor. Head to MYALOY.com and use code strict to get $20 off your first order. Strict scrutiny is brought to you by three day blinds. It's back to school football season here in Ann Arbor, which means I need to ensure the privacy of my own home,

which people sometimes walk in front of on their way to and from the stadium. And three day blinds offers me a way of ensuring some privacy, so no one can see me dancing to all of Taylor Swift's albums and Brad. That's on repeat too. There's a better way to buy blinds, shades, shutters and drapery, and it's called three day blinds. They're the leading manufacturer of high quality custom window treatments in the United States. And right now, if you use my URL, three day blinds.com/strict, they are running a buy one, get 150% off deal.

“We can shop for almost anything at home. Why not shop for blinds at home too?”

Three day blinds has local professionally trained design consultants who have an average of more than 10 years of experience, and they provide expert guidance on the right blinds for you in the comfort of your home. Just set up an appointment and you'll get a free no obligation quote the same day. Not very handy, DIY projects can be found, but measuring and installing blinds can be a big challenge. The expert team at three day blinds handles all the heavy lifting.

They design, measure and install, so you can sit back, relax, and leave it to the pros. Three day blinds has a super searchable platform that allows you to get the blinds you want, sorting for form or function, or form and function, because why not both with three day blinds. With three day blinds, you choose from thousands of options that fit any budget or style. Plus, from light filtering and black-up lines to motorization and smart blinds that work with Alexa,

three day blinds is a real upgrade to your home, not just a replacement.

Three day blinds has been in business for over 45 years, and they have helped over 2 million people,

get the window treatments of their dreams, so they are a brand you can trust. Right now, get quality window treatments that fit your budget with three day blinds. Three day blinds.com/strict for their buy one, get 150% off deal on custom blinds, shades and debris. For a free, no charge, no obligation consultation, just head to three day blinds.com/strict. While last time, that's buy one, get 150% off, when you head to the number three, D-A-Y blinds.com/strict.

The book, as you were talking about recounts and recovers, is the tradition of resisting judicial supremacy. You're talking about abolitionists, reconstruction era legislators, but so many more. Right, suffragists, 1960, civil rights leaders, many others.

“What can we learn from studying these resistance movements?”

Yeah, so one thing that we learned is that there's a fundamental distinction that they are building in the early 20th century, that has really been lost to us in constitutional thought. And that's the distinction between horizontal and vertical review or between the power of the court to reject the constitutional judgment of Congress reflected in legislation, either with support to overwhelm a presidential veto or with a support of a president signing the law. Right, so they're saying, look, there is no place in a democracy for a court's power to reject the constitutional judgment.

The constitutional judgment reflected in federal statutes. But there's a vital difference, the leading scholar and labor lawyer at the time the early 20th century describes this as a horse of a different color entirely. For the court to employ federal statutes to check the states, to check states that would nullify those federal commitments. We can't have a federal union, we can't have a set of federal guarantees.

“There's not a mechanism to say states you have to comply with them even when you don't want to.”

And so this distinction between horizontal and vertical review becomes crucial to progressives.

It becomes crucial to the AFL and the labor movement during this time. It becomes crucial to suffragists involved in this sobular rat-lift as a suffragist leader who says, look, all students of government understand that there's a fundamental difference between a court standing in the way of democracy. Standing in the way of democracy by invalidating an act of Congress and the court preventing states from nullifying federal guarantees. So this distinction between horizontal and vertical review between a court that is standing in the way of constitutional democracy by invalidating an act of Congress or a court that is serving constitutional democracy by enforcing acts of Congress against states.

Yeah, so I want to pick up on this distinction and use this as an opportunity to maybe discuss some concerns that sometimes get floated.

“You know, with the idea that maybe we can limit or eliminate the Supreme Court's power of judicial review, again, specifically meaning horizontal review.”

So one concern, right, sometimes heard is, well, what if the president does something illegal, right, the birthright citizenship executive order, right, or other presidential efforts to defy the Constitution, you know, how does limiting the power of the Supreme Court fit into that possibility. Yeah, so we see limiting the power of the court to invalidate acts of Congress as necessary in order to hold the president accountable to law.

Because Congress has passed lots of laws to regulate the president.

Congress has passed laws that, for example, prohibit the president from sending troops abroad without congressional approval or from declaring national emergencies and doing whatever he wants without congressional approval. Congress has passed laws banning corruption, the use of money in politics. It has criminalized assassinations and starting a coup. Congress has done all of this to restrain presidential power. But the reason why none of these laws are being enforced is in part because the Supreme Court has looked at these laws and said that they're unconstitutional.

Not because there's like some constitutional amendments saying Congress shall not regulate the president and everyone's like, oh, I know, you know, we just felt like ignoring this tax.

“But because the court is interpreting this extremely vague language, like the executive power shall be vested in a president and saying, you know what that means?”

That means the president can just pick some laws and decline to enforce them.

I mean, the Congress cannot regulate this supermange because he's just overwhelmingly powerful and needs to do whatever he thinks in order to take care that the laws are effectively executed.

And so the thing's standing in the way is is the court. And if we want to have a system in which presidents are accountable to law, if we want to have a system where ICE agents or, you know, board patrol agents or, you know, federal officials can't just like go into your house and take your stuff and put you in. And kidnap you off the street. We need a society that abides by the law. And what that means is Congress asserting its authority to make law democratically and to have that law consistently enforced rather than our current system and which the court can basically give presidents or ICE agents or everyone else.

A get out of jail free card on the theory that this law is somehow inappropriate.

“So since this proposal or any kind of proposal under this umbrella is focused on enforcing federal law, you know, another concern that some people might have is, well, what if Congress enacts a bad law, right?”

And that's simplifying it over simplifying it, of course, but, you know, you can imagine, of course, Congress enacting an abortion ban. You know, you talk about that prospect, obviously, in the book, but, you know, kind of what does an effort limiting the court's power to decline to enforce federal law mean, you know, about that possibility or prospect. Yeah, so there's no question that Congress can and that it has enacted bad laws. The question is, who decides what a bad law is and what do you do about it?

So if you let this Supreme Court decide what a bad law is, well, if you look at the history of horizontal review in the United States, the court has decided that a ban on child labor is a bad law that an income tax is a bad law that a voting rights act is a bad law that limiting corruption and billionaires over running elections is a bad law, right? If you don't let the court decide these questions, then there is an absolute risk of bad laws and what we need is politics to fight those bad laws to wipe them off the books and the reality is that almost universally in the United States, the way we have gotten rid of bad federal laws.

There's a few examples and they loom large in conversations around judicial supremacy, but almost universally, it has taken politics, it has taken the court getting out of the way and the people either changing the law or repealing the law or making it a non-effect. And so, the argument for democratic constitutionalism at the core of our book is not an argument that protects us from politics that would ever result in bad laws, but what it does is it says, it's not up to Sam Alito, what a bad law is, it's not up to one justice on the Supreme Court, one swing justice on the Supreme Court, what a bad law is, and if we think there's a bad law, then we need to organize and make our politics focused on getting rid of it.

Now, obviously, this relates to the distinction between horizontal and vertical review, but I also wanted you to reflect on, you know, people's instinct right or questions about, well, what does this mean for cases like Brown versus Board of Education, which invalidated separate but equal segregation in cases like that. Yeah, I think when people think about the Supreme Court, they have in mind cases like Brown versus Board of Education, when the court declared segregation on constitutional or, you know, row or a burger fell or any number of decisions, where they're like, I don't know, sometimes I like what they do, and sometimes I don't, it's a mixed back, but part of what we found in doing the research for the book is this really important distinction between when the court is invalidating federal law.

And when it is invalidating state law, and that distinction is not just a different adjective, it's not just like states are different and therefore they're okay, but it reflects that in a federal democracy, Congress represents our highest legislature, and in order to give effect to what that legislature does, you need to have someone enforce its laws against subordinate or inferior governments.

“And so one group of people who we focused on and found just in a lot of amazing stuff in the archives was the NAACP legal defense fund, the lawyers who argued Brown versus Board of Education.”

And in the 1920s and 1930s, the NAACP was focused on among other things, trying to get Congress to pass an anti-linching bill. And the reason why that was necessary was because Congress had passed all of these laws in the 1870s that the court had invalidated.

And they were like, "Come, and please just like pass this new law." But opponents of the anti-linching bill could point to all of those judicial opinions and say, "Sorry, it's unconstitutional."

And one thing that the NAACP lawyers realized was the court had not invalidated every law that Congress passed in 1870s.

“They would have, right, if they could, but they did not.”

They did, there was some that just like managed to squeeze through the cracks, including one that made it a crime to conspire to take away people's constitutional rights.

As well as another that said, federal courts, if you see someone violating someone's federally protected rights, hold them liable, you know, give the victim damages or injunction. And so Charles Hamilton Houston wrote this brief to President Roosevelt in 1932 saying, "There are, or in 1933 about that, there are these statutes, you know, that they still on the books, you can enforce them."

“And then when the Roosevelt administration was like, "I don't know, the NAACP took these same statutes and started litigating under them."”

And said, "It is time for the court to stop defying these laws and start procuring them to light when you see a sheriff lynching somebody and force the law that Congress already passed to stop it." And starting in 1937, the Supreme Court said, "I guess we can enforce these laws. We don't have to, we don't have to keep doing this, we don't have to keep just striking all this down." And that's what culminated in Brown. So the law issue in Brown was this law called the Ku Klux Klan Act of 1871, which in 1903, the Supreme Court looked at that statute and said, "I don't know what you expect us to do with it when we see Alabama disenfranchising all black people."

But the statute's not enough, but in Brown, they're good martial and Thomson's Baker Motley pointed to that statute and said, "This is what empowers you to get rid of racial segregation and education."

And finally, the court stopped getting in the way and started to bring this legislation to effect.

So cases like Brown, Row, also relied on the Klan Act, the burger fell, also relied on the Klan Act, even Dobbs relied on the Klan Act. It was a whole women's health and the Jackson abortion clinic that was opposed to Mississippi's abortion ban used the statute to try to stop Mississippi and Louisiana from getting in the way of abortion rights. And so these sorts of statutes are really vital, they're what carry constitutional rights to our lived experience, and so we want courts to enforce them. And that means embracing its power to engage in vertical review, but we don't want courts to defy them like they did in Texas when they said, "There's nothing we can do about this abortion ban that's at this bounty law, where we're just stuck, allowing Texas to escape federal oversight."

And he says, "It's the Klan Act. It's a statute from 1871. He calls it by a different name because it was codified in a different part of the US code at the time. Today we know it is Section 1983.

“But he says, "This is where you court get your power. That's our power point." He says, "It's not just your authority. It's your responsibility to implement this statute and to make equal protection meaningful in the states."”

And scholars who have written about Brown have described this as a moment where Marshall chokes in the argument. So he should be talking about the 14th Amendment. But argument does no. He's putting on the table this theory of democratic constitutionalism. He's saying, "Look, you have a federal statute that is telling you court enforce the guarantee of equal protection against the states." And it's that vision of democratic constitutionalism that Brown really instantiates. And it's, I think, a misunderstanding of Brown as dependent on judicial supremacy, that is very much at the crux of why there is such commitment to judicial supremacy on the left.

“Strixer is brought to you by loyering without law. What happens when authoritarianism doesn't abandon the law, but uses it to undermine democratic values and institutions.”

Loering without law, a podcast from the Knight First Amendment Institute at Columbia University, takes on this urgent question.

Hosted by Katie Glenn, Bass, and Mudav Kosoa. The six-part series explores the role lawyers play in either defending democracy or facilitating the slide into authoritarianism. Episodes feature leading experts, including Kim Lane Shepley, on how authoritarian leaders exploit legal systems to consolidate power, or its blessing on the threat institutional corruption poses to American democracy, and Deborah Pearlstein, on how the decades-long erosion of professional norms have fueled the democratic backsliding or witnessing today.

While sobering, the conversations also find hope in the lawyers who refuse to bend and the institutions that have held the line, and they offer surprising and ambitious proposals for how the legal profession and American democracy might find their way back.

“Listen to all six episodes of Loering Without Law, wherever you get your podcasts.”

Maybe we can talk now about implementing this vision of democratic constitutionalism, because already in the conversation,

we've talked about a few different possible Supreme Court reforms that might work in that direction. The restrictions on judicial review that say the Supreme Court doesn't have the power to decline to enforce federal laws, or maybe limitations on their ability to decline to enforce federal laws. You mentioned requirements that there be a super majority of justices to invalidated a federal law before they do so. In other words, there's a particular possibility defining good behavior, not to mean, you're declining to enforce federal law. So what other kind of possible reforms could be used to implement this vision of democratic constitutionalism.

Yeah, so one thing that's just important is a kind of building block is that the Constitution explicitly empowers Congress to regulate the Supreme Court and to regulate the appellate authority of the Supreme Court to create and regulate the lower courts, and the Congress has used that power from the beginning. So it is deeply a historical to suggest that what we have is a system of government where the court has some like need to decide every constitutional question. That is not the system we have ever lived in, and it's not the body of laws that were created at the founding to structure, the powers of the Supreme Court.

This authority of Congress to regulate the pellet jurisdiction of the Supreme Court is what Charles Black described as the rock on which the legitimacy of the whole judicial project functions in the democracy. So the power is there and it's really a policy conversation of like, well, what should Congress do, what are good uses of that power to regulate and cabin the court so that you can enable a more democratic interpretation of the constitution, the one that we see reflected in federal statutes to have meaning and force in the world.

And we're kind of at an extreme outer bound of what judicial supremacy can look like in the United States today, so there's a range of options on the table, and the choices not all are nothing. So one possibility, as you said, is the possibility that has been proposed by influential voices across American history, including the the lead author of the 14th Amendment that says, look, we should have some sort of consensus rule.

And that would be kind of institutionalizing an idea that has always been at the core of justifications of judicial power, which is that the court shouldn't second guess the work of Congress if there is a plausible justification for what Congress has done. The arguments often associated with an early in 19th century, late 19th century scholar James Bradley Thayer that said, you know, clear error obvious error before you can invalidate an act of Congress actually Frederick Douglass made that argument before James Bradley Thayer, but, but he said in lamenting that the civil rights cases, look, unless there is like no justification you can give me for the validity of a law, how are you telling me that the civil rights act of 1875 is an unconstitutional statute.

“So consensus rule is just bringing into being this idea that has been around for a very long time, but that the court has increasingly kind of honors only in the breach.”

And today has like stopped even saying that it needs to recognize Congress's constitutional judgment as a legitimate judgment worthy of difference.

So that's one one possibility that that could be on the table. You go, did you want to add others? Sure, yeah. I mean, it says it gets specific like imagine a future Congress wants to enact a new voting rights act. So it looks around and says our current democracy is broken.

We want to make Congress more responsive and more democratic. We want to make our elections better. We want to fix the problems that we have right now.

And it's not difficult to imagine that the current majority of the Supreme Court would declare that unconstitutional. Not because it violates the constitution, but because they say it violates the constitution, they just announce the new constitutional principle against voting rights act. I think that's true not just for a voting rights act, but for literally any law that a current majority of the court does not like for policy reasons. So a reproductive justice law, environmental or climate law, a labor law, any kind of law you can imagine that a current majority of the court doesn't like it's going to be struck down.

“And so in that environment, I think anyone has to ask, what can Congress do to protect that legislation from an almost certain hostile court?”

And the answer is a lot because this was the problem facing the reconstruction Congress. This is a problem that's been facing Congress is over generations. And Congress has done things to protect this sort of legislation. So among other things that Congress could include in this voting rights law.

It could conclude a provision saying the law is a political question and courts lack jurisdiction to assess its constitutionality. Its constitutionality has been decided by Congress and by voters.

Congress could say that there is no cause of action. No one can bring a claim challenging this law. It could say that no court has jurisdiction to evaluate whether this law is constitutional or not. It could say that the United States has sovereign immunity. And so it does not weave that sovereign immunity. It could say that among all of the statutes that Congress has passed to give courts power, it does not have the power to issue an injunction in this context or any other sort of written in this context.

It could say that good behavior rule. It could say that, you know, here is a rule of interpretation. So when you interpret this law, here are the rules you have to apply. It could say that the court cannot meet for another year or two if it is going to assess this law. It could create a new court called the court for reviewing the statute and staff it with the people it wants. Or Congress could say we're going to add four new justices or six new justices or ten new justices to the court as Congress has done in the past to change the numbers of justices given the obvious threat that the court imposes.

“And so I don't think that a bill necessarily needs to include all of those protections. You know, I think ideally Congress would not need it to include all of those protections.”

But what that range of protections shows is that the actual limit on what Congress does to protect this legislation from the court is not a constitutional obstacle and it is not any other legal obstacle. It is a political obstacle and a cultural obstacle. It's voters do not know we need to demand this from members of Congress. You need to have a plan for how are you going to protect your legislation from the court.

So if we want to live under any other system, we have to, you know, become more comfortable as the reconstruction Congress was with defining the constitution ourselves issuing our understanding of the constitution means and then protecting that interpretation from other people. And it's worth noting that most of the things that Congress can do Congress has done across American history so it has made the size of the court bigger and smaller. It has taken away injunctive relief in labor cases or in tax cases.

It has channel jurisdiction to a DC circuit. It has limited when and why and how the Supreme Court can review certain issues. It has. It's a Supreme Court terms. It's canceled Supreme Court terms. It's bifurcated reviews so that certain issues go to a new court that it's created while other issues go to the district courts through ordinary litigation. So there's just history offers a range of examples of what Congress has in fact already done.

And and these tools remain available. So I now want to ask a series of, you know, short questions to kind of make explicit things. We've already covered, but just want to make them super clear.

“So the first is, you know, what problem or problems would this array of possible reforms address or fix?”

So the problem is that today we have a constitutional culture and a dominant constitutional ideology that says the court gets to reject the constitutional judgment of the people reflected in federal statutes.

And we need a constitutional culture and a constitutional theory that puts that judgment reflected in federal statutes front and center in the way that we interpret the constitution.

These nine road weirdos get to decide this question rather than people who are actually accountable to the people or you can think about that in kind of more concrete cases, you know, you were imagining me go like, well, what of Congress passes really wonderful law.

“It would do did a least what right if the Supreme Court just decided it didn't like it or it thought it was a bad law, think about a wealth tax or student debt relief, you know, or a new voting rights act, et cetera.”

Here to you've already kind of answered, but just want to make this clear what would be needed to make these kinds of reforms happen, you know, legislation, constitutional amendment or what.

It would take a majority of Congress and a president to sign it or it would take a super majority of Congress to overcome a presidential veto, but all of these reforms are ordinary legislation. And you know, as Daphne was saying, it's ordinary legislation that Congress has enacted, you know, just this term, the Supreme Court enforced a jurisdiction strip that the issue is that for a long time, the people who have thought about this have had, you know, goals of, for example, making it as easy as possible to deport people or make it as hard as possible for people incarcerated to contest their incarceration.

Like the goals have been bad, but the power represents is something that, you know, other people can use for different ends. Speaking of like problem solving, for whatever reason this calls to mind a comment that Kate made, well, having a discussion with people about the amendment to change how Kansas Supreme Court just says are elected when she said, wouldn't it be nice to have a court that wasn't omnipresent or that we were thinking about in our everyday lives or that we didn't have to think of.

We didn't have to think about like, let's move to that world and it seems like that there's a smaller problem, but perhaps one that these reforms would also address. I also think that that would create a more independent and legitimate court because part of the problem that we have created in this country is that there are questions that we have deep political divisions over. And you can't find an answer by reading three words on the Constitution over and over and over again and upside down. So we need to resolve these questions politically.

What if you did textualism real hard.

“And if we say, look the only way we get to decide them is the Supreme Court, then we get the kind of, um, rabbit politics around traditional appointments that we've seen play out and the hardball that we're seeing play out around appointments.”

It would also make a better Congress, you know, like right now we have a Congress in which we do have a Congress.

And it's with many issues. I mean, we're seeing it right now when it comes to, you know, war abroad.

“And I'm like, I don't know about war like who am I, a senator to, you know, stand in the way of a present tweet.”

Yeah, yeah. And we've talked about this this book for a long time now and a lot of people who are sympathetic to the argument are nevertheless worried about Congress. Yes, because they look at the current Congress anything. I don't want those people to decide anything because those people are terrible.

And it's hard to disagree. Yeah.

But at the same time, you know, one reason why Congress is just so broken today is because all of the ways in which Congress has tried to fix itself over the years from the voting rights act to keeping money out of politics to preventing corruption.

“Those laws have been struck down by the court. And if we want a better Congress, one that is functional and representative and doing the kinds of things that everyone expects Congress to do.”

And you also need a Congress with responsibility and that responsibility includes responsibility over deciding what the Constitution means. So your last answer already touched on this, do you go, but I'm going to ask it anyways, if simple legislation could make these reforms happen, do you think the Supreme Court and specifically this Supreme Court would allow the legislation to stand or would yield it into the sun.

You can also think of this as the why isn't this reform sufficient even if it's necessary question.

No, obviously not. You could quote a clearance Thomas opinion from last year and put it into a law. But if that law is going to protect abortion rights, it's unconstitutional as far as he's concerned. And that's just kind of obvious. But I think the key insight with respect to judicial resistance is that, you know, if Congress were to pass a law banning bribery, it already has done this, but if it were to really mean it and pass a law banning bribery by the justices. And the justices said, you know what, we have a constitutional not only a constitutional obligation to take whatever bribes we get.

And therefore we're going to not enforce this law. That is not the end of the story. Congress can do a lot to stop the court from interfering. The most intuitive response would just be to add ten justices who understand that bribery is not. The easy confirmation hearing, what do you think of a bribe. But you know, Congress could also say, you know, the Supreme Court is not responsible for enforcing this.

“We're going to take away the powers that would interfere with our enforcement of this anti bribery statute. And so the real key limit is what would voters think about that.”

You know, with voters when they see Congress trying to enforce its law against the court, would they say, I'm sorry, judicial independence means you shouldn't touch the court with this anti bribery law, or would they say, please, you know, we need a better country. And we wrote this book to try to encourage more people to think of that hypothetical and demand that Congress act to enforce what the Constitution really intuitively means as opposed to this really counter intuitive form of constitutional democracy we've inherited in which we have this, you know, Supreme body that is making all of the decisions for us, but that we can't even, you know, elect or or hold accountable.

So that seems like a perfect place to end. I want to thank again, do you know, booey and definitely run on for joining and their book again, supremacy, how rule by the court, replace government by the people is out this week. You can get it all of your favorite booksellers, including bookshop.org. And if you do purchase the book before tomorrow, Friday, five Eastern, you can enter to win a giveaway. This overall judicial supremacy t-shirt or a mug and the link to enter in that giveaway is in the show notes.

So thank you again, Nico and Daphna for taking the time. Thank you. Thank you so much for having us of course. I want to put in one last plug. So I think I alluded to this on a previous episode, but I have changed my mind about certain things. And I feel like before I read your book, I understood the kind of like theoretical conceptual problems with judicial review.

And then they limit the Supreme Court's ability, you know, just strike it down or the anti-Bribery statute and whatnot.

“And honestly, like after I read your book, I was like, no, that's not going big enough. So yeah, no, thank you again for writing the book and again, everyone should check it out supremacy, how rule by the court, replace government by the people.”

Thank you.

Strix scrutiny is a crooked media production. Our show is produced by Melody Raoul and Michael Goldsmith, music by Eddie Cooper.

“Our team includes Matt to Grove, Ben Hethcote, Johanna Case, Kenny Mothit, Adam Lippert and Eric Shoot. Our production staff is proudly unionized with the writer's guild of America East.”

(upbeat music)