How Supreme is the Court?

September 20, 2020 12:21 PM

"Judicial supremacy" -- the idea that the courts, and the Supreme Court in particular -- have the final word on constitutional law and popular rights, is a disputed idea. Former Stanford Law Dean Larry Kramer has argued for years that the founders understood that "the people, themselves" ultimately must exert democratic control over the Court; Lincoln took the same view. Kramer views the brief flowering of the Warren Court as seducing liberals to defer to the traditionally conservative SCOTUS; Larry Tribe disagrees. Debate over the rule of the Court means a relook at its power is gaining adherents both left and right. One enduring proposal is that the Court should fundamentally be focused on strengthening democracy, while ceding control in other areas. At the moment, that's not going great.
posted by SandCounty (30 comments total)

In What Exactly is the Liberal Position on the Supreme Court? Matt Bruenig discusses Supreme Court supremacy and court packing as related to the current moment.

I don’t have a problem necessarily with abolishing constitutional review, but court-packing is a strange and very complicated way to do it. If you want to get rid of constitutional review, that can be done unilaterally by the president. All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided, and that the constitutional document says absolutely nothing about the Supreme Court having this power. You don’t need a constitutional amendment. You don’t need to pass a law. And you don’t need to appoint any judges. This is a completely reasonable position that also reflects the kind of power top courts have in other countries.

posted by kingless at 12:44 PM on September 20, 2020 [1 favorite]

"is a disputed idea."


Well, not in any meaningful way. Judicial supremacy was established in Marbury v. Madison well over 200 years ago. It's settled law. Any disputes about it are purely academic.
posted by mikeand1 at 12:46 PM on September 20, 2020 [12 favorites]

"All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding"

Umm... if you think it's a "completely reasonable position" that Trump should be able to make such assertions, I'm going to stop listening to you immediately.
posted by mikeand1 at 12:50 PM on September 20, 2020 [25 favorites]

All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided

...and then turn around to the Court to see if it agrees (hint: probably not) and then either stop claiming it or force the biggest constitutional crisis for at least a century.
posted by jaduncan at 1:12 PM on September 20, 2020 [6 favorites]

Brent Bozell, Jr.'s The Warren Revolution from 1966 "challenges all our preconceptions, whether radical or conservative, about the place of the Supreme Court in the division of the powers," according to a contemporary review.

In short, if Brent Bozell is right, the old contest between those who want the Supreme Court justices to be strict con­structionists and those who want them to be loose constructionists is entirely beside the point. They shouldn’t be passing definitive judgment on what the legislators do at all.

posted by Fukiyama at 1:44 PM on September 20, 2020

The fact that the framers said so little about the judicial branch, said nothing about judicial review, and didn't separate the appeals power from the power to determine whether a law is constitutional is just more evidence that they did a bad job writing the Constitution in the first place. We venerate that okay-but-not-great piece of writing and the people who wrote it way, way too much.
posted by Jonathan Livengood at 2:15 PM on September 20, 2020 [29 favorites]

All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided

Well that sounds like a good way to get rid of the rule of law. Especially during the Trump Presidency.

We venerate that okay-but-not-great piece of writing and the people who wrote it way, way too much.

I think actual veneration of the *writing* specifically (and consequent engagement with the text and its history of interpretation) is actually pretty rare on the ground, especially among conservatives. Some will dive in to see if we can find or wrest our values from it, but AFAICT there's a certain approach that doesn't even bother and treats it as a symbol instead of a text (perhaps like they do with the Bible, or the Nation, or the Children, etc), imputing their values to it without the structure of an argument other than "well, my values are good, and the constitution is good, therefore the constitution supports what I value" usually without being conscious of that.

Less veneration of the symbol might help with that, I suppose.
posted by wildblueyonder at 2:33 PM on September 20, 2020 [8 favorites]

We could stop forgetting the 9th amendment exists.
posted by Your Childhood Pet Rock at 2:37 PM on September 20, 2020 [7 favorites]

or force the biggest constitutional crisis for at least a century

You say that like it's a bad thing. Shit is fucked up already, what are you worried about breaking? Everything's already broken.
posted by Meatbomb at 2:50 PM on September 20, 2020 [4 favorites]

I don’t have a problem necessarily with abolishing constitutional review, but court-packing is a strange and very complicated way to do it.

Approximately zero percent of the people advocating court packing want to do away with constitutional review, or even want a court that reliably rules one way.

Ignoring Marbury makes no sense, anyway. If a conservative SCOTUS overturns Roe vs Wade, what part of the President saying "it doesn't count" is going to stop states banning abortion?
posted by BungaDunga at 2:56 PM on September 20, 2020 [8 favorites]

He's obviously not talking about Trump declaring Marbury void. Why would he? The court's going to be his anyway.
posted by Steely-eyed Missile Man at 3:02 PM on September 20, 2020 [1 favorite]

You say that like it's a bad thing. Shit is fucked up already, what are you worried about breaking? Everything's already broken.

The concept that the executive branch has at least some checks and balances.
posted by jaduncan at 3:35 PM on September 20, 2020 [3 favorites]

bruenig suffers from this syndrome among the young american left where it is impossible for them to grasp that they are actually in the minority, that for better or worse, most people do not actually agree with them. normally it doesnt matter much because it boils down to people like him advocating for social justice even when it seems like a lost cause, which is a good thing. sometimes it becomes more problematic because it makes them unable to accept how their preferred candidate could possibly fairly lose.

but then there is the worst possible incarnation of these blinders, which is clear in this argument about getting rid of judicial review by presidential fiat, where it would essentially advocate for guys like trump to get exactly what they want: the power to do anything without any checks.

the american system of checks and balances is collapsing. but the solution to that is not to get rid of any remaining vestiges of it and hope for the best. the solution is to gum up the works MORE, including by pressuring elitist institutionalists like john roberts to wring their hands even though they are not progressives, until a more representative government replaces the trumpists and demographic change overwhelms them. "burn it all down" is not a solution.
posted by wibari at 4:22 PM on September 20, 2020 [17 favorites]

I don't think any of your criticisms of Bruenig are accurate. He has never been unable to grasp that "most people do not actually agree with" him, nor has he been "unable to accept how [his] preferred candidate could possibly fairly lose". You are projecting these things into him. Nor is he advocating the course of action he outlines. He's written plenty of articles like that one, identifying what he thinks is the desired outcome from a course of outcome much bandied about by the liberal commentariat (and I think his observations are usually correct and that, "Approximately zero percent of the people advocating court packing want to do away with constitutional review, or even want a court that reliably rules one way" is obviously wrong) and substituting a less tortuous course of action which will achieve the same ends, usually (intentionally I have to imagine) one which will elicit cries of horror from liberals, which, predictably, it has done.
posted by Steely-eyed Missile Man at 4:40 PM on September 20, 2020 [4 favorites]

bruenig suffers from this syndrome among the young american left where it is impossible for them to grasp that they are actually in the minority, that for better or worse, most people do not actually agree with them

Almost nobody premises their political strategy on the assumption that “most people” disagree in an unalterable way - I would argue for good reason, I would argue it is generally a self-fulfilling prophecy if one does.

Breunig is being provocative in sort of an annoying way, though, in that he is stating things that are trivially true in theory, yet also obviously complicated in practice, as if the problem was that nobody ever had the idea of ignoring the complicated part before.
posted by atoxyl at 4:48 PM on September 20, 2020 [2 favorites]

I read a very relevant article earlier today. about how Abraham Lincoln and the (very different) Republican Party and the abolitionist movement in general fought against the very pro-slavery Supreme Court.

Here's an interesting excerpt:

Across the late 1850s, Lincoln argued that “the American people,” not the Supreme Court, were the true arbiters of the Constitution, and that the only way to defeat the proslavery judiciary was through mass political struggle. And after Lincoln and Hamlin were elected in 1860, the new president’s inaugural address articulated this view in perhaps the strongest language he ever used:

[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.

Once in power, Lincoln and congressional Republicans “reorganized” the federal judiciary and “packed” the court, adding an additional justice in 1863. More fundamentally, though, they simply ignored the proslavery precedents established in the 1850s. In June 1862, for instance, Congress passed and Lincoln signed a bill banning slavery from the federal territories — a direct violation of the majority ruling in Dred Scott. The court meekly acquiesced, recognizing that its political power was long since broken.

posted by overglow at 4:50 PM on September 20, 2020 [15 favorites]

The Electoral College is a swollen and infected appendix. Cut it out and heal.
posted by Splunge at 5:31 PM on September 20, 2020 [9 favorites]

The ONLY true arbiter in a proper Democracy should be the majority will of the people. Remember 'We the People...' as a preamble to The Constitution does not assign any powers to the Federal Government nor does it limit it. I will defer to the excellent Wikipedia entry on this.

The Electoral College and the Supreme Court give an appearance of fairness and 'considered opinion and judgment' and all around fairness. However, several past election decisions have led to one individual being elected over another while not representing the majority choice. Equally, having a restricted group of learned individuals making decisions OR reversing decisions made by prior equally (or greater) learned individuals which do not represent the general will of the people is not truly fair or 'proper' (trying to find the right word there).

What HAS happened is that the institutions of government have been structured in a way to allow them to make small and large decisions over which 'We the People' have little opportunity or say in the matter... except for every four years. Even then the will and intent of the collective majority has been and is over-ruled by institutional structure. e.g. electoral college decisions, Executive Orders, and decisions made in 'secret' (or not) where it is believed to be in societies best interest - war, economic/trade decisions, climate, EPA... the list is long.

I am sure there are many more erudite people who can come up with specific examples. I have deliberately avoided diving in to name these as I do not want to sideline the overall discussion re the supremacy (or not) of the SC. Equally I am not trying to be an idealist regarding this. There are definitely many areas of government where specialized knowledge and experience is required/needed. However, when the will of the people is ignored or over-ruled by a select few (voting is one example) then something really needs to be fixed.

The best action to take is to get out and vote and engage in effective conversation to ensure YOUR views are properly represented.
posted by IndelibleUnderpants at 5:58 PM on September 20, 2020 [1 favorite]

Careful, friend - you just waved away the whole notion of minority rights, which have - imperfectly and inconsistently, but often - been protected by the Courts. Speaking as a member of several minority groups - demographic and psychographic - I can't jump fully on the "majority should always win" bandwagon.
posted by PhineasGage at 6:31 PM on September 20, 2020 [21 favorites]

It is a very good thing that we are not a proper democracy. Or, let us say, that we are also not a collection of fifty independent proper democracies each making majority-rule decisions as to some very fundamental rights and privileges.

...Or at least we weren't, fairly recently.
posted by delfin at 7:22 PM on September 20, 2020 [2 favorites]

Ack! I meant of course to question the notion of "majority should always win," above.
posted by PhineasGage at 7:28 PM on September 20, 2020

Breunig is being provocative in sort of an annoying way, though, in that he is stating things that are trivially true in theory, yet also obviously complicated in practice, as if the problem was that nobody ever had the idea of ignoring the complicated part before.

In general beware anyone peddling a simple solution to a complicated problem. Also, the perspective that everything is fucked therefore why not try something that seems insane. That sort of reasoning is why a lot of folks voted for Trump in the first place.
posted by axiom at 9:48 PM on September 20, 2020 [11 favorites]

The problem with getting rid of judicial supremacy is that it also gets rid of the Constitution as a binding document on anyone. Without anyone to give the final verdict on what is and is not constitutional that everyone else is bound to accept it no longer functions as any sort of restraint.

Implicitly you will replace it with either legislative supremacy or executive supremacy and given the shift in power towards the executive of the last 70 years or so most likely the latter.
posted by atrazine at 1:09 AM on September 21, 2020 [11 favorites]

Isn’t Marbury another “its just polite” bit of governance?

If either branch decided the SC didn’t actually have that self appointed authority (which is WILD to me btw), there’s really nothing the court can do about it?

This is not a Cool Weird Trick, this is a longstanding vulnerability in our system of government.
posted by Slackermagee at 5:23 AM on September 21, 2020 [1 favorite]

Isn’t Marbury another “its just polite” bit of governance?

If either branch decided the SC didn’t actually have that self appointed authority (which is WILD to me btw), there’s really nothing the court can do about it?

This is not a Cool Weird Trick, this is a longstanding vulnerability in our system of government.

It's essentially an *inevitable* weakness. Democratic systems only work because the vast majority of the people working in them (almost all part of the executive branch) collectively agree to follow the rules and believe that they will be punished for not doing so.

Someone will always be the final arbiter. In the absence of judicial checks, that is the executive by default because they are the ones who actually do things and therefore judicial checks serve to restrain what they can and cannot do. The legislature sets the rules but has no power to enforce them either.

This was a common criticism of the whole idea of governments of laws and limited government power in the 17th and 18th centuries. Monarchists argued that you cannot have a legal limit on government because that implies another "higher government" to enforce the laws about what the government can do. It can't be governments all the way up and therefore power will always be arbitrary.

The US has essentially circumvented that by creating just such a super-government. You cannot appeal a supreme court ruling and the convention is that you must obey it. As long as that holds, the system works. The limited nature of the court's powers - that it can only rule on cases that make their way to it, that the other two branches have a role in its composition, and that if it went completely wild with power it could be expanded arbitrarily form one kind of check on its theoretically enormous power. A far more significant check on that power comes from the culture of the court and the justice's own view of their role. See for example the Roberts ruling on the ACA - from a legal point of view it's quite frankly ridiculous. A completely incoherent argument that makes little sense. BTW he wrote not only that argument but he wrote the dissenting minority opinion as well!

It makes perfect sense if you understand that on some level John Roberts knew that Americans had voted rather overwhelmingly for some kind of health care reform, their legislators had put together a law to do just that, and it would not be appropriate to his place in history and his idea of the role of the court to over-rule that.

It has worked quite well, by which I mean that the court has frequently delivered rulings that I agree with, a definition that I assume everyone uses whether they're aware of it or not.

It does however create the ridiculous spectacle where the US is now almost reduced to electing its president and senate as a sort of electoral college for the real government which is the supreme court. The 2016 election was absolutely decided at least in part by a substantial number of people who did not think much of Donald Trump as a person or a leader voting for him anyway so that he could appoint justices to the court that would do what they wanted. The Republicans are now counting on mobilising their voters using exactly the same argument.
posted by atrazine at 8:11 AM on September 21, 2020 [10 favorites]

It makes perfect sense if you understand that on some level John Roberts knew that Americans had voted rather overwhelmingly for some kind of health care reform, their legislators had put together a law to do just that, and it would not be appropriate to his place in history and his idea of the role of the court to over-rule that.

FWIW, this is, I think, where Kramer and other popular constitutionalists are going -- not towards a wholly unconstrained executive or legislative branch, but towards a court that is constrained by an acute sense that it, too, can be checked politically and legitimately. (I think we saw similar effects with the DACA and trans rights opinions this term). Kramer is less than clear on the appropriate bounds of such checks -- and is candid that one's comfort with them depends heavily on how you feel about popular rule generally. He seems to be arguing ultimately for dynamic tension rather than supremacy.

John Hart Ely's "Democracy and Distrust" framework is a variant of this that seems to me better theorized; he contended that the Court should be extremely charry of entering politics or settling political issues that were fairly debated in the (more) political branches, but quite focused on correcting democratic deficiencies -- for instance, ruling very narrowly on questions of statutory interpretation, but enforcing protections against gerrymandering and for minority voting rights given its unique role as a non-majoritarian institution.

Sorting out what to do with unelected "supreme" judges in a democracy does, it seems to me, require having a democratic theory of how they are to operate -- I find Ely's views most compelling, but I do think Kramer's political understanding of the Court is a useful one and bears out pretty well in reality.
posted by SandCounty at 8:53 AM on September 21, 2020 [1 favorite]

If either branch decided the SC didn’t actually have that self appointed authority (which is WILD to me btw), there’s really nothing the court can do about it?

Well, more specifically, the legislature could decide that. We don't like to talk about it, but constitutional democracies outside the U.S. use that system and they are fine. Christopher Sprigman at NYU (a law school classmate of mine, and a brilliant guy) has been writing about this recently. He calls it jurisdiction stripping, though I don't know if that's a common term. Here's a piece where he talks about it in the context of this weekend's tragic news. It's long and a little dense, but very much worth the read. Here's his upcoming NYU L. Rev. article, if you want the full hit. Note that he has been writing and talking about this for some time, but it has taken on more weight recently.

The general idea is that there is no constitutional reason that Congress, whether by super-majority or otherwise, could not explicitly say, with respect to certain laws, that the federal courts (including SCOTUS) lack jurisdiction to review them.
posted by The Bellman at 10:08 AM on September 21, 2020 [2 favorites]

Nations with unwritten constitutions just deal with this stuff with political fights and precedents. Not just court precedents--which laws are passed and which ones are followed.

I'd been interested by the difference, which in a US civics class context seems insane, for a while. Certainly the last 4 years have shown to me is that there is nothing in the Constitution that matters without the political consensus to enforce it. For me the most cut and dry case is the court just ignoring the 15th amendment as irrelevant.

substituting a less tortuous course of action which will achieve the same ends, usually (intentionally I have to imagine) one which will elicit cries of horror from liberals, which, predictably, it has done.

Having read Bruening's piece, it seems the progressive counterpart of the old New Republic or Slate. Sure, liberals are right on this issue but they are right in the wrong way, so I criticize them and my readers can keep feeling superior. (Admission: I loved that crap in my teens.)

As an actual policy proposal it's nonsense. His "less tortuous course of action" involves picking more fights with more people giving your opponents more tools to stop you.

You say that like it's a bad thing. Shit is fucked up already, what are you worried about breaking? Everything's already broken.

Who is't can say 'I am at the worst'?
I am worse than e'er I was.
And worse I may be yet. The worst is not
So long as we can say 'This is the worst.'

posted by mark k at 10:11 AM on September 21, 2020 [2 favorites]

A related piece by Henry Farrell: The Supreme Court and Normcore. Threatening and occasionally breaking norms (such as by packing the court or just ignoring it) when the "other side" defects is an important piece of how you preserve norms in the first place.
posted by mark k at 10:19 AM on September 21, 2020 [3 favorites]

Also related, the Weekly Sift has The Illegitimacy of a Conservative Supreme Court.

The death of liberal Supreme Court Justice Ruth Bader Ginsburg, and the likelihood that President Trump and the Republican Senate will replace her with an extreme conservative, creating a 6-3 conservative majority on the Court, raises a number of immediate questions: Can Democrats slow the process down somehow, so that Ginsburg will be replaced by a new president and a new Senate in January? Can Republicans be shamed by the hypocrisy of confirming Trump’s nominee so close to the election (after denying President Obama a Supreme Court appointment much further from the election) that they will forego a confirmation vote? If not, as is almost certain, can four Republican senators be pealed off to prevent Trump’s nominee from being confirmed? And so on.

posted by kingless at 4:29 PM on September 21, 2020 [2 favorites]