How reforming the Supreme Court could backfire on Democrats

Labeling the Supreme Court “ basically a subsidiary of the MAGA Republican Party,” House Minority Leader Hakeem Jeffries (D-N.Y.) recently called for “dramatic” reforms. Furious over court decisions on voting rights, campaign finance, presidential immunity and abortion, Democrats have proposed adding justices, imposing 18-year term limits, limiting the court’s emergency docket, enacting a mandatory ethics code, and restricting the court’s jurisdiction to hear presidential immunity appeals.

Despite his own complaints over the recent decisions on tariffs and birthright citizenship, President Trump, meanwhile, has accused “Radical Left Democrats ” of “calling for an illegal and unconstitutional attack on our SACRED United States Supreme Court.” And the Republican National Committee has included opposition to any changes in its 2024 platform .

Neither party, however, questions the court’s authority to declare federal statutes unconstitutional. Perhaps they should.

In an illuminating new book, “ Supremacy: How Rule by the Court Replaced Government by the People, ” Harvard Law Professors Nikolas Bowie and Daphna Renan mount a credible challenge to the conventional wisdom. They detail how the Supreme Court came to assert the authority to overrule Congress — and how fiercely contested that claim has been. The consequences, they argue, have rendered the U.S. “less a nation of laws enacted by the people” than one governed by nine lawyers in robes.

Their concern is not vertical review — that is, invalidating state laws under the Constitution’s supremacy clause — but horizontal review, the power of federal judges to overturn the judgments of Congress.

Nothing in the Constitution specifies how such disputes should be resolved. At the nation’s founding, James Madison and most Democratic-Republicans insisted that allowing unelected federal judges to override Congress “was never intended and can never be proper. ” Federalists, including Alexander Hamilton, disagreed.

In 1803, Chief Justice John Marshall, a Federalist, declared in Marbury v. Madison that it is “emphatically the province and the duty of the judicial department to say what the law is.” Most Americans assume Marbury established the court’s power of judicial review, including horizontal review. But judicial review is a modern term. And because Marshall spent “the rest of his career explicitly deferring to Congress’s understanding of its constitutional powers,” Marbury was frequently cited for the proposition that “each branch of the federal government could interpret the Constitution for itself.”

The issue came to a head in 1857, when the Supreme Court voided a federal statute limiting the spread of slavery in the infamous Dred Scott decision . The new Republican Party of Abraham Lincoln argued that political questions such as slavery should be decided through elections. Otherwise, Lincoln warned , “the people will have ceased to be their own rulers.”

During the Civil War and Reconstruction, congressional Republicans passed laws advancing civil rights and Black suffrage, despite Dred Scott. To limit President Andrew Johnson’s ability to shape the Supreme Court, Congress reduced the number of justices from 10 to seven, and considered requiring a supermajority to declare a statute unconstitutional and banning the court from deciding constitutional questions.

Nonetheless, in the post-Reconstruction era, the court undid “nearly every major law Congress passed to protect multiracial democracy in the South.” In subsequent decades, it struck down the federal income tax, workplace safety rules, child labor laws, and minimum wage guarantees.

Prominent labor leaders, politicians and eminent jurists, including Oliver Wendell Holmes and Learned Hand, continued to maintain that the Constitution did not grant federal courts the authority to review the decisions of Congress. “Wouldn’t it be interesting,” Felix Frankfurter asked , to study the scores of cases in which the Supreme Court invalidated legislation, “with a view to ascertaining the value of the Court’s corrective power?”

However, following the Warren Court’s landmark decisions on desegregation, abortion and other civil liberties issues, most liberals embraced judicial supremacy, even when the decisions entailed horizontal rather than vertical review.

As Bowie and Renan point out , judicial supremacy leaves no practical democratic mechanism for reversing court decisions short of amending the Constitution. Moreover, while the court sometimes invalidated federal statutes harmful to vulnerable minorities, “a vastly larger set” of decisions favored the “one minority that the Court has consistently protected from Congress: the wealthy.”

Given this history, should politicians reconsider their commitment to judicial supremacy?

That commitment is most troubling when courts override legislation enacted by democratic majorities. But, ironically, given an imperial president and a supine Congress, the court’s authority to invalidate federal statutes seems far less consequential than its ability to rein in unprecedented assertions of executive branch authority . After all, Trump has already issued executive orders that circumvent Supreme Court decisions on tariffs and birthright citizenship.

Under these conditions, reforms limiting the court’s ability to decide constitutional questions might empower the president far more than Congress, particularly if a president insists his ability to interpret the Constitution is just as authoritative as that of Congress or the court.

The democratic constitutionalism that Bowie and Renan support depends on public officials accepting legal constraints even when no court has the last word. A president prepared to disregard both Congress and the courts presents a unique challenge.

More than reining in the federal courts, we need a Congress willing to legislate and defend its constitutional prerogatives and an electorate that insists officeholders respect the constitutional limits on their authority. For in the end, as Bowie and Renan acknowledge , “no body of judges can save democracy. It is up to us, the people, to govern ourselves.”

David Wippman is emeritus president of Hamilton College. Glenn C. Altschuler is the Thomas and Dorothy Litwin Emeritus Professor of American Studies at Cornell University.