Pressure MOUNTS as Nation DEMANDS REFORM at Supreme Court!!!
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Quick Read
Summary
Takeaways
- ❖The Roberts Court's decision in *Louisiana versus Callais* effectively completed its campaign to demolish the Voting Rights Act.
- ❖Democratic leaders like Hakeem Jeffries and Kamala Harris have called for aggressive Supreme Court reform, including court expansion.
- ❖Republicans, led by Jim Jordan, politicized reform efforts as 'court packing' to motivate their base.
- ❖Witness Niko Bowie emphasized that Congress has the power to amend court actions by statute, strengthen ethics laws, and defend democracy from justices.
- ❖Daphne Renan explains that the debate over court size is fundamentally about the power the court and individual justices wield in American democracy.
- ❖The current system of judicial supremacy, where five justices control constitutional meaning, leads to intense partisan battles over appointments.
- ❖The historical context shows that the U.S. was founded to move away from monarchy, yet judicial decisions now change rights based on a justice's death, akin to a monarch's succession.
- ❖The *Dred Scott v. Sanford* decision, which struck down Congress's ban on slavery in territories, was met with outrage by Americans who viewed it as a political question for voters and legislators, not judges.
- ❖The Federalist Society's founding in 1982 coincided with a strategic shift on the right to focus on judicial appointments for constitutional interpretation, rather than congressional action.
- ❖The left also adopted a similar approach post-1982, trusting the court to protect rights and neglecting Congress's legislative power to do so, as seen with the decision not to codify abortion rights when Justice Ginsburg was appointed.
Insights
1The Roberts Court's Attack on Voting Rights and the Call for Reform
The Supreme Court's decision in *Louisiana versus Callais* is framed as the culmination of a decades-long effort by the Roberts Court to dismantle the Voting Rights Act. This action has provoked strong reactions from Democratic leaders, who are now openly calling for aggressive Supreme Court reform, including court expansion, to address what they perceive as judicial overreach and politicization.
Following the Roberts Court's decision several weeks ago in Louisiana versus Callais, significantly gutting the Voting Rights Act... Since that decision, there has been a raft of calls for aggressive Supreme Court reform. The leader of the House Democrats, Hakeem Jeffries, said that massive Supreme Court reform was necessary... Senator Ruben Gallego came out in support of expanding the Supreme Court. And former Democratic presidential nominee Kamala Harris also threw her hat in the ring...
2Congress's Overlooked Power to Check the Court
Niko Bowie asserts that Congress possesses statutory power to address judicial actions, including strengthening ethics laws and defending democracy from judicial decisions. This perspective challenges the common assumption that Supreme Court rulings are immutable and beyond legislative recourse, emphasizing that the Constitution does not demand indefinite acceptance of judicial interpretations.
I felt like it was my job as a witness at the hearing to point out all of the things that you don't like that the court is doing is not something that we have to live with forever. It's something that Congress can amend by statute. If the... current ethics laws are not being enforced well, Congress should strengthen them. If the court is undermining democracy, Congress should defend and protect democracy from the justices, but none of this is something that the Constitution demands...
3Judicial Supremacy as a Historical Anomaly
Daphne Renan and Niko Bowie argue that the idea of the Supreme Court having the final say on all constitutional questions is a-historical and not required by the Constitution. They contrast the impact of a monarch's death (no change in law) with a Supreme Court justice's death (fundamental changes in rights), highlighting an ironic shift towards a 'monarchical' system in the U.S.
the current system we have is not one required by the Constitution, one that was anticipated by all the authors of the Constitution that has existed since the beginning... When Ruth Bader Ginsburg died... our rights changed. You know, they the day before she died versus the day after her successor was appointed, we just have a very different country.
4The Dred Scott Precedent and Early American Outrage
The first instance of the Supreme Court striking down an act of Congress (*Dred Scott v. Sanford*) was met with widespread outrage, particularly from the founders of the Republican Party. Their response was not to passively accept the ruling or wait for judicial changes, but to challenge the court's authority on what they considered a political question for the people and their elected representatives.
the core narrative is around the first time the Supreme Court really disagreed with an act of Congress and struck it down, uh which was Dred Scott versus Sanford... one of the things that we want to recover with our book is just the sheer outrage among Americans... Their their response was who who are they to decide whether slavery should exist under our Constitution.
5The 1982 Shift: Ceding Power to the Judiciary
The year 1982 marked a pivotal moment where both the political right and left began to trust the Supreme Court to resolve major political divisions, rather than relying on Congress. The right, influenced by figures like Robert Bork, saw judicial supremacy as a means to achieve policy goals (like overturning Roe v. Wade or gutting the Voting Rights Act) without congressional battles. The left, while reauthorizing the Voting Rights Act through Congress, also started to defer to the court on other constitutional questions, leading to an atrophy of Congress's constitutional interpretation muscle.
The Federalist Society is it was founded in 1982... Robert Bork, were saying, no. We have a better way of getting rid of the Voting Rights Act and getting rid of Roe. It's judicial supremacy... But on the left, um they they took a very similar lesson, which was oh, you know, even though Congress might have this power to overcome bad Supreme Court interpretations of the Constitution... leave it to the court. The court will figure it out.
Bottom Line
The current partisan 'trench warfare' over Supreme Court appointments is a direct consequence of the accepted, yet historically contingent, idea of judicial supremacy.
Reducing the court's perceived ultimate authority could de-escalate the political intensity of judicial nominations, allowing for a more functional appointments process.
Advocates for judicial reform should focus not just on court size or ethics, but on challenging the fundamental premise of judicial supremacy itself, shifting public discourse towards congressional constitutional interpretation.
The historical record shows that Congress's jurisdiction over constitutional questions was much narrower at the founding and has been regulated by Congress from the beginning.
This historical context undermines the argument that the court's current sweeping power is an original or unchangeable feature of the U.S. system.
Legal scholars and activists can leverage this historical evidence to build a stronger case for Congress to reassert its power to regulate the court's jurisdiction and interpret the Constitution.
Key Concepts
Judicial Supremacy
The idea that the Supreme Court has the ultimate and exclusive authority to interpret the Constitution, making its decisions binding on all other branches of government and the final word on constitutional meaning. The podcast argues this is a modern, historically contingent concept, not an original constitutional design.
Democratic Constitutionalism
The belief that constitutional meaning should primarily be determined through the democratic political process, involving elected representatives and voters, rather than solely by an unelected judiciary. This model emphasizes Congress's power to interpret and enforce the Constitution through legislation.
Lessons
- Educate yourself and others on the historical contingency of judicial supremacy, understanding that the Supreme Court's ultimate authority over constitutional meaning is not an original or unchangeable feature of American democracy.
- Advocate for Congress to reassert its constitutional power to interpret and defend the Constitution through legislation, rather than solely relying on judicial appointments to achieve policy goals.
- Support political leaders who are willing to challenge the court's authority and propose statutory reforms that strengthen ethics, protect democratic processes, and define constitutional rights, even if such actions are deemed 'controversial' by those defending judicial supremacy.
Notable Moments
The comparison of the impact of Queen Elizabeth's death versus Justice Ruth Bader Ginsburg's death on national law and rights.
This analogy powerfully illustrates the 'monarchical' nature the U.S. judicial system has adopted, where unelected individuals' lives and deaths directly alter the rights of citizens, a stark contrast to the stability of law in a true monarchy.
Quotes
"I felt like it was my job as a witness at the hearing to point out all of the things that you don't like that the court is doing is not something that we have to live with forever. It's something that Congress can amend by statute."
"When you give five individuals that kind of power, then it becomes almost impossible not to have the the um kind of trench warfare that we've seen develop over appointments to to the court."
"It's this real irony that we're going into the 250th anniversary of the Declaration of Independence, and we have a country in which the expectation is we can change our rights and our law when someone dies. You know, as if we lived in a monarchy..."
"Their their response was who who are they to decide whether slavery should exist under our Constitution. They're a bunch of judges... this is a political question for us as voters and as politicians and as legislators to resolve through the political process."
"We have a better way of getting rid of the Voting Rights Act and getting rid of Roe. It's judicial supremacy. If we interpret the Constitution in a way where only the court gets to decide what the Constitution means. And we can get our people on the court, we can get rid of all of the laws we don't like and preserve all the laws we do."
Q&A
Recent Questions
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