How the Supreme Court Seized Power to Rule Over the Rest of Us
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In 2012, the Supreme Court upheld the Affordable Care Act by a single vote. Four years earlier, President Barack Obama had won the White House in a 9**** million vote**** landslide, campaigning on reforming America’s broken healthcare system. His decisive victory swept Democrats into a filibuster-proof majority in Congress. In 2010, Obamacare became the law of the land. It was an example of something vanishingly rare in American politics: The people had spoken, and the federal government had delivered.
But in June 2012, the entire country waited to learn whether nine unelected judges would find some constitutional problem with the new law, nullifying all the votes of those who elected their leaders and the year of work those leaders put into revamping the health care system. Ultimately, Chief Justice John Roberts delivered the decisive vote upholding the core of the law. And so it has gone down in history.
But the reality is that Roberts’ opinion was a limited win: The chief justice also joined four colleagues to**** decide that the law’s requirement that states expand their Medicaid programs was unconstitutional. Because of these five men, expansion became a state-by-state option, and millions of Americans have gone without health care over a decade. Today, 2.4 million Americans remain without coverage who would otherwise have it. Studies show thousands have likely died as a result.
From a human standpoint, it’s tragic. From a constitutional perspective, it’s absurd: The people elect their representatives to enact legislation, and five unelected judges veto that legislation. Is this really the democratic system our founders envisioned?
The conventional wisdom is that this is in fact the system our learned framers adopted that Philadelphia summer of 1787. Three co-equal branches of government—except that the unelected**** one gets to veto the others. We are currently living with the undesirable consequences of this system. Under Chief Justice John Roberts, the Supreme Court hasn’t just taken healthcare from millions. It overruled Congress’ battle against billionaire power by vetoing campaign finance laws, most infamously in _Citizens United_. Though activists marched and died before Congress**** passed the 1965 Voting Rights Act, this court has torn it down. In 2024, the Supreme Court gifted the president the right to ignore Congress by granting him criminal immunity for official acts. Laws enacted by the people’s representatives are reduced to suggestions, not just to the justices but to the president.
As the midterm elections approach, we see the world this Supreme Court created reflected back at us: billionaires trying to buy elections, Republican-run states rushing to gerrymander away Black representation in Congress, a president who doesn’t think twice before illegally starting a war, trying to sway elections**** by illegally interfering in voting by mail, and literally bulldozing a third of the White House.
> “We can rebuild a democratic government of the people in place of supreme rule by the Court.”
In the face of this constitutional destruction, a new book from two legal scholars argues that the country was never supposed to be run by judges sitting on high, and it doesn’t have to be. In _Supremacy: How Rule by the Court Replaced Government by the People,_ Harvard Law professors Nikolas Bowie and Daphna Renan demonstrate how the court has taken more power than the framers entrusted to them. Tracing the growth of the court’s authority through the nation’s history, they describe our current system, in which the high court can veto Congress’ will, as**** judicial supremacy. Rather than a constitutional construct, they show, it is a social one. Over a period of some 100 years, the American people, encouraged by leaders on both sides of the political aisle, came to believe that the Supreme Court had the final say over what the country would become. Rather than the people, through their representatives, running the country—nine unelected judges took control. Now, the authors argue, it’s time to take it back.
“Public opinion is the source of its current power,” they write of the Supreme Court. “If public opinion inadvertently protects the Court’s supremacy, it can also take it away.” Rather than throw up their hands at the court’s stranglehold on the country’s ability to provide health care, protect voting rights, and keep up the guardrails of democracy, they argue that the solution is remarkably simple. “We can rebuild a democratic government of the people in place of supreme rule by the Court” if Americans build a movement to demand it.
Today’s Congress is supine. The court invalidates its laws and lawmakers do nothing about it. But, Bowie and Renan argue, Congress can take power back from the court. Their book seeks to explain how the court seized power it was never intended to have, and why a people’s movement, culminating in Congressional action, could set the country back on a democratic track.
There is perhaps no Supreme Court case worse**** than _Dred Scott v. Sandford,_ the 1857 decision that propelled the country toward civil war. Infamously, the court ruled both that Black people could not be citizens and that Congress could not ban slavery in US territories. The decision was expressly overturned by the 14th Amendment to the Constitution, establishing citizenship to all people born on American soil. But _Dred Scott_ is also deserves a place in history as the birth of judicial supremacy—of the Supreme Court overruling an act of Congress.
The court overrules Congress so frequently today, that it’s hard to imagine that such an assertion of authority could be a scandal. But of all the shocking and intemperate parts of _Dred Scott_ , the fact that the court invalidated an act of Congress—the Missouri Compromise that banned slavery in certain territories—was among the most audacious.
As the justices weighed their decision in early 1857, president-elect James Buchanan anxiously awaited the results. Pro-slavery, Buchanan hoped that the court’s ruling might quell the anti-slavery forces gaining political influence outside the south. So he wrote to one of the justices, a staunch ally named John Catron, trying to deduce how the court might rule, and what he might say about it in his inaugural address.
It’s unthinkable by modern norms, where leaks of the court’s deliberations are treated as scandals by the court and the press, but Catron replied promptly. A long-serving justice from Tennessee, Catron doubted that his colleagues were preparing to declare the Missouri Compromise invalid. “To hold that no power existed to govern Territories after a practice of 68 years would shock all,” he told Buchanan.
> Judicial supremacy is an elite, anti-majoritarian check on the nation.
But a week later, Catron sent a follow-up with new information. The court actually would do the unthinkable and rule that Congress had no authority to restrict slavery in the territories. Catron also offered some political advice to Buchanan on how to assuage predictable outrage in the north: He advised Buchanan to “say in your Inaugural, ‘That the question involving the constitutionality of the Missouri Compromise line is presented to the appropriate tribunal to decide; to wit, to the Supreme Court.’” As Bowie and Renan recount, Catron then**** suggested the ruling**** might go down more smoothly with the public if Buchanan emphasized the “‘high and independent character’ of the justices to explain why it was up to them to ‘settle a controversy which has so long and seriously agitated the country, and which must ultimately be decided by the Supreme Court.’”
Overruling Congress was a**** radical step, and Catron knew the public might reject it. So he closed his letter by asking Buchanan for a little help: Would he reach out to his fellow Pennsylvanian on the court, Justice Robert Grier, to encourage him to join the majority opinion on the point of overruling Congress? It would look better if the decision wasn’t the work, solely, of southern Democrats. Buchanan messaged Grier, and Grier complied.
This story epitomizes what judicial supremacy would become: the tool by which the justices would entrench white supremacist and reactionary rule, dressed up as the high mindedness of the country’s smartest men.
But in the 1850s, despite its boundary breaking attack on Congress, _Dred Scott_ did little to decide the question of the court’s authority over lawmaking. Abolitionist Frederick Douglass decried the ruling, but did not despair, because he did not consider it the final word. “If it were at all likely that the people of these free States would tamely submit to this demonical judgment, I might feel gloomy and sad over it,” Douglass said at the time. Douglass had come to believe that the Constitution, which empowers Congress to guarantee a Republican form of government in every state, contained the tools to abolish slavery. _Dred Scott_ had not changed that; it was simply the view of a handful of men. “We can appeal this hell-black judgment of the Supreme Court, to the court of common sense and common humanity,” Douglass said. In other words, the people could reject it by electing leaders who would not submit to it.
This was the platform Abraham Lincoln sucessfully**** ran on in 1860. In fact, the south’s secession after his election—despite having won**** the right to retrieve runaway slaves and expand slavery into the territories—was an acknowledgement that the court did not have the final word on slavery, or anything else.
What, then, is the role of the court if not to interpret the constitutionality of the laws? Bowie and Renan are asking us to abandon the modern understanding of the court’s role for one they believe is more faithful to the Constitution and more aligned with how an actual democracy must function. It would look something like this: Congress, with the president’s signature, makes the nation’s laws. The president carries out those laws. And the Supreme Court simply**** enforces**** those laws. If states stray either from the Constitution or federal law, the federal courts can nullify those laws, and in so doing protect the federal law. Similarly, the court should hold the president to those same laws by halting executive decisions that break the law—a duty this court has all but abandoned in the Trump era. But as it was**** in the country’s first seven decades, all the way up to _Dred Scott_ , the authors**** argue, the court should not have the power to second guess the constitutionality of laws passed by Congress and signed by**** the president.
While the Civil War reversed the findings of _Dred Scott,_ the court’s antebellum foray into judicial supremacy had opened a Pandora’s Box that could not be shut. _Supremacy_ traces how judicial supremacy gathered steam despite its ignominious origins. A decade after Lincoln’s election, his Republican Party fractured, with wealthy northerners suddenly wary of a radical Congress that might turn enthusiasm for equality in the South into pro-labor legislation for the industrial North. “The Supreme Court’s insulation from democracy now looked like an asset to a genteel and propertied Republican elite,” Bowie and Renan write. Though, “the Republican Party supported Congress as the people’s representatives uniquely positioned to give meaning to the Constitution through lawmaking,” by 1869, “a small but prominent group started to imagine the Supreme Court as a bulwark against multiracial democracy and the political power of the working masses.”
That is precisely how the Supreme Court used this newfound power. Encouraged by a coalition of Democrats and elite Republicans in the 1870s, the court invoked its new supreme authority to end Reconstruction by vetoing federal laws at a rapid clip. “By the end of the century, the Supreme Court undid nearly every major law Congress passed to protect multiracial democracy in the South,” Bowie and Renan explain.
> This is no way to run a democracy.
Then, as now, this is no way to run a democracy. Douglass, optimistic after _Dred Scott_ , turned mournful after the court invalidated a major civil rights law in 1883. The court, he said, “had become ‘the autocratic point in our national government,’” with “more absolute power than any ‘monarch in Europe.’” Against Congress’ judgment, the court had “‘inflicted a heavy calamity upon seven millions of people of this country.” Further still, the Court’s actions revealed “‘the United States before the world as a Nation utterly destitute of the power to protect the rights of its own citizens.’” That assessment remains true today.
The Supreme Court didn’t reserve its judicial veto for civil rights legislation. Starting in the 1880s, it used its power to advantage the wealthy and nullify laws protecting workers. By the early 20th century, the progressive and labor movements recognized judicial supremacy as a major threat. The American Federation of Labor conducted a review of every case since _Dred Scott_ in which the court considered the constitutionality of an act of Congress, concluding in a solemn 1919 report that judicial supremacy was “destructive of human life.” The millions without healthcare today may agree.
After the court invalidated a federal income tax and an anti-child labor law, Congress proposed constitutional amendments to undo the decisions. To progressive Senator Robert La Follette, the situation was untenable: “We cannot live under a system of government where we are forced to amend the Constitution every time we want to pass a progressive law.”
Today, his ideological heirs face a similar problem. Even if advocates convince Congress to pass laws to combat climate change or adopt Medicare-for-all, the Roberts Court will almost certainly strike them down. Just look at how Medicaid-for-a-few-more went in 2012. Under our system of judicial supremacy, five people can decide**** that the First Amendment’s free speech protections allow billionaires to spend infinite amounts on elections, but amending the Constitution to regulate campaign donations is a Herculean effort that can be thwarted by a tiny minority. According to political scientist Robert Dahl’s 2001 calculations, a constitutional amendment can be blocked by senators representing 8 percent of the population, or by state legislatures representing just 4 percent of the country. Similarly,**** because six people decided presidents are not bound by criminal laws, it will take two-thirds majorities in Congress and three quarters of the states to again**** constrain the president to follow the law.
Running for president in 1924, La Follette put the problem of judicial supremacy front and center: “Shall we move forward in our development as a nation, carrying out the will of the people as expressed by their ballots, or shall all progress be checked by the arbitrary dictates of five judges until the situation becomes so desperate that it can no longer be endured?”
There’s no mystery, then, why the forces of wealth and racial hierarchy latched onto judicial supremacy in the 1850s and have expounded it ever since. It is, in its essence, an elite, anti-majoritarian check on the nation. But the more recent, and puzzling, development is the left’s capitulation to it. Bowie and Renan explain this as a tragic misunderstanding. After a century of attacking the court, the left warmed to it under Chief Justice Earl Warren, when the justices ended Jim Crow and embraced civil rights. Accepting the Supreme Court as the final say on the Constitution became a way to safeguard the major progressive wins of that era during the conservative backlash of the Regan years, including the 1954 case _Brown v. Board of Education_ , ending segregation in education, and 1973’s _Roe v. Wade_ , the now-overturned case recognizing a right to abortion. These landmark decisions could be wiped away if the court itself**** wasn’t the ultimate arbiter of what the constitution meant.
_“Brown_ was quickly misconstrued, even by its authors, as a decision that turned on judicial supremacy,” write Bowie and Renan. “And this misunderstanding began to convince progressives, after decades of critiquing judicial supremacy, to give the Court the final say—even over Congress—about what the Constitution meant.”
But Bowie and Renan offer a way for the left to have its cake and eat it too. The progressive decisions of the Warren era, including _Brown_ and _Roe_ , they argue, are actually examples of the court enforcing a federal law, even though they are cloaked in the language of judicial supremacy. Though the authors of _Brown_ don’t mention it, the civil rights advocates who argued that case urged the court to end the Jim Crow doctrine of “separate but equal” by using authority granted by Congress.
> “Our rights are only as secure as our politics make them.”
This Congressional authority goes back to Reconstruction, when Congress was trying to enforce the 14th Amendment’s legal protections for Black people. In 1871, Congress knew it could not individually override every unconstitutional state law, so it explicitly**** empowered federal courts to act as enforcers of the 14th Amendment by deciding when a state law violated the new amendment’s dictates. _Brown_ and _Roe_ do exactly this; with Congress’ permission, the court determined that state laws mandating segregation and banning abortion ran afoul of the 14th Amendment. Understanding the landmark decisions of this era not as judicial supremacy but as enforcing a federal law requires a shift in our perception of the court’s authority, but not of the outcome of these cases.
These gains would be no less fragile if the ultimate authority on Constitutional meaning were Congress, rather than the court, Bowie and Renan argue. Yes, a mere majority of**** Congress could theoretically decide that segregation is Constitutional under this theory of congressional authority—they call it democratic constitutionalism. But as the justices’ 5-4 decision to overturn _Roe_ in 2022 shows, _Brown_ and the other civil rights cases of the era, upon which our democracy depends, are vulnerable to the whims of a changing court. (In recent years, conservative judicial nominees have refused to say that _Brown_ was rightly decided during their confirmation hearings.) “Ultimately, our rights are only as secure as our politics make them,” they write. “But under a system of democratic constitutionalism, the final say regarding how to address things like abortion access, mass shootings, the environment, and voting rights—questions of profound moral import and political debate—would belong to the people through their elected representatives.”
_Supremacy_ argues that the problem of judicial supremacy has a simple solution: Congress can pass a law prohibiting the court from overturning acts of Congress on Constitutional grounds, and require that they enforce their laws instead. Under the Constitution, Congress has significant power over the court, including how many members it has, and what kinds of cases they can decide. There are smaller versions of this same type of reform, commonly called jurisdiction stripping. Congress could stipulate in law which federal laws are not subject to constitutional review by the courts, and it could require a greater number of justices agree before overruling Congress, so that five justices cannot decide our collective fate but perhaps seven or nine can. For a daunting problem, it’s a simple remedy—it requires Congress to awaken from its deep sleep and defend its place in our three-branch system of government, as the voice that is most powerful because it is most accountable to the people.
Such a change, however legal, would have to be accompanied by a demand for making it from a majority of the people. And while today’s court is not popular—currently at its lowest ebb since Gallup started polling on its reputation—other surveys show that the court, though not well liked, is still buoyed by its reputation as a nonpartisan body of learned lawyers.
Today’s court bolsters its authority to decide what the Constitution means for the entire country by cultivating an aura of expertise and impartiality, like oracles who hand down Constitutional truths from on high. This mythology is powered in part by a lack of transparency or accountability—mechanisms of control reserved for political actors, which they claim vociferously they are not. (For example, the _New York Times_ recently reported that the justices have decided to keep their papers hidden**** until decades after their deaths, a secrecy that speaks to the justices reputation as deliberating minds, not political actors accountable to the public.) But the idea of the court as nine smarties floating above the political fray is, like judicial supremacy, a more recent construct. In fact, the myth of an apolitical court dates back to the same period that judicial supremacy took root, reinforcing the court’s claim to the new power to decide the meaning of the Constitution for everyone.
In _The Political Supreme Court: A Forgotten History_ , out next month, Pennsylvania State University**** legal historian Rachel Shelden demonstrates that through most of the 19th century, justices were chosen not for their legal acumen but for their political experience. Each justice hailed from a different region, their assigned circuit, in order to represent those states’ interests on the court. And justices rode circuit, which required them to travel extensively during the year to hear trials throughout the geographic region each oversaw. Whereas today, the court cultivates authority by raising an opaque screen like the wizard of Oz, disconnected from the people, the early court drew its authority from its connection to them. Through “judicial representation,” people were induced to accept the court’s rulings because the court was tied to the people—not above them. Today’s court, made up of four graduates from Yale Law School, four from Harvard Law School, and one from Notre Dame, is certainly not one that represents the people.
> The justices “rewrote the past to claim that the Court had always held final constitutional authority.”
For the court’s first 100 years, justices participated in the political fray. As Shelden reveals with jaw-dropping details, justices were often vying for elected office—including the presidency—from the bench, and generally involved in Washington politics. “Members of the Court advised on or created legislation for members of Congress and state legislators,” Shelden writes. “They ghost-wrote presidential addresses, served as political liaisons, and participated in diplomatic affairs.” And “nearly every justice on the Court participated in presidential or congressional campaigns by endorsing friends, working behind the scenes to promote favorite candidates, or even hosting the equivalent of early fundraisers.”
Justice Catron, who corresponded with Buchanan about the Dred Scott decision, was an artful political manipulator. As Shelden’s book recounts, he placed a fabricated story in his local Tennessee paper to bolster Buchanan’s chances in the 1856 elections, in which he claimed that the long-deceased but adored former president, Andrew Jackson, had told him he supported Buchanan for the presidency 12 years prior.
Today’s proponents of the justices hiding their papers for generations might be surprised to learn that when Buchanan wrote to Justice Grier about how he should rule in _Dred Scott_ , Grier responded with an account of the internal deliberations and how each justice was voting. When Buchanan gave his inaugural address days later, he urged the public to accept the court’s determination of slavery in the territories as final, whatever it may be, but knowing full well exactly what it would do.
As the justices began to cultivate a reputation as nonpartisan experts, their efforts were bolstered when Congress effectively eliminated circuit-riding in 1891. Now, justices would**** gain their authority as powerful brains disconnected from the real world, rather than as people who participated in it. To firm up this new source of authority, the justices and their backers “rewrote the past to claim that the Court had always held final constitutional authority, even from its earliest years,” Shelden writes.
Even non-law students are aware of the 1803 case _Marbury v. Madison_ , in which Chief Justice John Marshall famously asserted the court’s authority to find acts of Congress unconstitutional. But according to Shelden, as well as Bowie and Renan, the canonization of _Marbury_ is revisionist history from the late 19th century used to sell judicial supremacy to the public. “Among the most effective and lasting stories of this moment was that of John Marshall as an apolitical guardian of judicial supremacy,” Shelden writes. “This well-worn heroic tale is published in textbooks, consumed by generations of new law students, and promoted in popular histories of the courts and the nation.” But the decision, in its time, was never assumed to assert judicial supremacy; it was plucked from the history books and mythologized in the decades after Reconstruction as evidence that overruling Congress was the court’s duty nearly from the beginning.
Though the court shed the trappings of political actors, it’s hard to argue that the modern court is not enacting its political preferences. In the past year alone, the court’s Republican-appointed majority finished dismantling the 1965 Voting Rights Act, setting off a rush to redraw Black Democratic districts as white Republican ones ahead of the midterms; it overturned two lower-court findings of racist gerrymandering to put into effect congressional districts in Texas and Alabama that favor Republicans, it let Louisiana halt its primary elections after they had begun in order replace a Black-majority district with a white Republican one; and it invalidated a New York state trial court order in a case in which it had no jurisdiction in order to maintain a Republican-leaning district on Staten Island—an emergency order that even some of the court’s conservative supporters argued was beyond the pale. It struck down a campaign finance law to allow the wealthy to give more to candidates by routing it through the party apparatus, then used its emergency docket to give those new donations a discounted TV ad buying rate, all at the behest of the Republican Party. Shelden calls her book a forgotten history, detailing the political activities and social lives of the justices through the 19th century. Would an accounting of the modern justices’ social and political lives, which include secret vacations with billionaires and financial ties to political activists, show more of the same?
Each June, as the court wraps up its annual term, many Americans tune in to learn what rights and benefits will remain intact. In recent years, the court has taken away rights to vote equally, bodily autonomy, medical care, health insurance, religious freedom for prisoners, protections against unlawful detainment and deportation, and very nearly the right to be a citizen if born on US soil, among other major changes to people’s rights and our system of government. The situation was described aptly by La Follette in 1922. “By a process of gradual encroachments, uncertain and timid at first, but now confident and aggressive, sovereignty has been wrested from the people and usurped by the courts,” he said. “Today the actual rule of the American people is the Supreme Court of the United States.”
As Bowie, Renan, and Shelden show, this is not how its always been, or how it’s supposed to be. To take back their power, the people must simply demand it.