We Need To Talk About Judicial Review

0:00Strict Scrutiny is brought to you by Americans United for separation of church and state. It's back to school season, and this year, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. Twenty-eight 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 its hands on this case.

0:34And 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 them taken down. That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe 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-imposed religion or religious instruction or coercion.

1:15Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit au.org slash 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. Hello, appliance fans. I'm here at Grand Appliance, where Bill just bought a premium Bosch benchmark dishwasher. Talk about your experience, Bill. My salesperson was an appliance genius.

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2:36For more information, visit jameshardy.com slash hardybacker. Mr. Chief Justice, may I please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, 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 off our necks.

3:34by the people. Welcome back to Strict Scrutiny, Nico 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 styled as part of our hot SCOTUS 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.

4:09Okay, so ready to get started again? Yes. Awesome. And just a reminder to everyone, I love this book so much. We are doing a giveaway. It will run through tomorrow, Friday, 5 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. OK, 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 the Supreme Court kind of entered its Eric Cartman era, you know, saying I am the authority, you know, and white supremacists were like, yes, you are, since you are on our side.

4:50So 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, you know, 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.

5:34Absolutely. And so when thinking about how do we abolish slavery or ban the spread of slavery 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 announce that it has this unregulatable authority. But see Sam Alito's interview in the Wall Street Journal, but we'll put that to the side.

6:19I know, he might think that. Right, he can think whatever he wants. It's like, I'm the only one willing to say it because you didn't read the document. And the document says that 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 ban the spread of slavery in federal territory. Full 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.

6:54Congress 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.

7:33I think that 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 and discussion with the Reconstructionists about what legislation goes far enough vis-a-vis the Supreme Court. No, I mean, that was literally the debate. I mean, that's kind of what was amazing about researching this book is there are 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.

8:14And he's the person who authored the first ban on child labor. He also happened to author 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 and has resigned. Quiet quitting. 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.

9:08And 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?

9:51Yeah. So who picked up on it is former Confederates that were trying to reclaim an old vision of the Constitution through a very targeted litigation strategy culminating in the Supreme Court. and also a kind of war of ideas, as one of them wrote in The Lost Cause that became a kind of tract that was putting forward the ideology that what we had was a reckless Congress because as Reconstruction 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, look, what we have is a reckless Congress.

10:34It's run them up. It's given up on the constitutional tradition. And what we need is a Supreme Court that can reclaim the Constitution as it was. So that is the vision that underwrites the rise of judicial supremacy at this period. And the Republican Party comes into being in opposition to that vision. So you see Abraham Lincoln is kind of trying to think of what to make sense of this creed of judicial supremacy, actually, as the Supreme Court's deciding Dred Scott. And there are 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?

11:11The question of whether Congress can restrict the spread of slavery in the territories or not. And he says, and 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 he thinks, like, how is this compatible with American constitutional democracy? So Lincoln kind of rises to power, making a name for himself in 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.

11:57And it becomes the founding creed of the Republican Party, which really, you know, stands in opposition to what they term again and again, is they will not stand for another, a second Dred Scott decision. 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.

12:35You know, and it 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.

13:24OK, 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 Taft relitigating the Tenure of Office Act and saying, I need to do penance for the fact that I didn't see it before. I apologize on behalf of all Republicans. We did Andrew Johnson wrong. Exactly. I mean, that's literally what he writes. Yes, no, I know. It's a paraphrase, but yeah, it's basically there.

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18:23The book, as you were talking about, you know, recounts and recovers this tradition of resisting judicial supremacy. You know, you're talking about abolitionists, reconstruction era legislators, but so many more, right? Suffragists, 1960s civil rights leaders, you know, and many others. You know, what can we learn from studying these resistance movements? Yeah. So one thing that we learned is that there is 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 the support of a president signing the law.

19:11Right. So they're saying, look, there is no place in a democracy for a court's power to reject the constitutional judgment reflected in federal statutes. But there's a vital difference. The leading scholar and labor lawyer at the time of 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 if there's not a mechanism to say states you have to comply with them even when you don't want to.

19:50And 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. So Bula Ratliff as a suffragist leader who says, look, all students of government understand that there is a fundamental difference between a court 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, is fundamental to these resistance movements and is a distinction that we really hope to resurrect through the book.

20:48Yeah. 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, I've 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.

21:35because 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 are unconstitutional.

22:19not because there's like some constitutional amendment saying Congress shall not regulate the president and everyone's like oh I know you know we just we felt like ignoring this text 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 that means that Congress cannot regulate this super mensch because he's just overwhelmingly powerful and needs to do whatever he thinks in order to take care that the laws are effectively executed.

22:54And so the thing standing in the way 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, Border Patrol agents or, you know, federal officials can't just like go into your house and take your stuff and put you in jail 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 in 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.

23:44So 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, oversimplifying 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.

24:23The question is, who decides what a bad law is and what do you do about it? So if you let the 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 overrunning 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.

25:03And 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, repealing the law, or making it of non-effect. And so the argument for democratic constitutionalism at the core of our book is not an argument that protects us from a 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.

25:45It'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. So one last kind of counter or concern before we shift to, you know, what this possible reform or reforms might look like. And that, of course, is the specter or shadow of Brown versus Board of Education, which oftentimes, you know, in discussions about limiting the Supreme Court's power will get trotted out. Now, obviously, this relates to the distinction between horizontal and vertical review.

26:19But I also wanted you to reflect on people's instinct or questions about, well, what does this mean for cases like Brown v. 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 unconstitutional or, you know, Roe or Obergefell 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 bag. 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.