Market Mad House

In individuals, insanity is rare; but in groups, parties, nations and epochs, it is the rule. Friedrich Nietzsche


The US Supreme Court vs Democracy

The US Supreme Court threatens liberty and democracy in America. Surprisingly, this incendiary message is being spread by an assistant professor at Harvard Law School.

Nikolas Bowie attacks the Supreme Court as anti-democratic in a long Washington Post op-ed titled How the Supreme Court dominates our democracy. Bowie correctly notes that the Supreme Court’s track record for defending democracy and constitutional rights is terrible. In particular, Bowie blames the Supremes for Jim Crow.

What is extraordinary is that Bowie questions the concept of an all-powerful judiciary. Moreover, Bowie alleges the Supreme Court is a threat to democracy. He writes “The only honest answer is that the justices are supposed to be antidemocratic,” of the Court.

Is the  Supreme Court Antidemocratic and Unconstitutional?

Bowie accuses the Supreme Court of being undemocratic, illegal, and unconstitutional. His argument is that Supreme Court justices violate the Constitution and the letter and spirit of the law by overturning federal laws.

“By contrast, when the Supreme Court decides not to enforce a federal law, the justices in the majority effectively declare that their view is superior to everyone else’s,” Bowie writes. “Even if the president, more than 500 members of Congress and four justices interpret the Constitution as permitting a law, if five justices disagree, then the law is not enforced.”

I think Bowie believes the Supreme Court violates the separation of powers principle behind the Constitution. In theory, America’s federal government has three equal branches, judicial, executive, and legislative. Bowie thinks the Supreme Court violated the principle when it overturned much of the Voting Rights Act in the infamous Citizens United decision.

Additionally, Bowie accuses the Supreme Court of making law and rewriting the Constitution to suit its members’ beliefs. “For example, in 1895’s Pollock v. Farmers’ Loan and Trust Co., the Supreme Court invalidated a century of precedent to hold that a federal income tax would violate “one of the bulwarks of private rights and private property.” Bowie writes. “And in 2010’s Citizens United, the court threw out another century of federal campaign finance laws.”

Is the Supreme Court Unamerican?

Interestingly, Bowie thinks the entire court system is corrupt and undemocratic. He writes: “This embrace of a judicial aristocracy affects much of the culture surrounding the Supreme Court.” Bowie concludes: “Our democracy suffers when an unelected group of lawyers take away our ability to govern ourselves.”

Finally, Bowie admits he thinks the Supreme Court is Unamerican and undemocratic. He believes the Supreme Court betrays the ideals of the American Revolution.

“This is precisely what the Declaration of Independence protested,” Bowie writes of the Supreme Court. “As absurd as it was then for a continent to be perpetually-governed by an island, it is equally absurd now for a nation of 300 million to be perpetually-governed by five Harvard and Yale alumni.”

Bowie bases his Washington Post piece on testimony he gave to the Presidential Commission on the Supreme Court of the United States.

Fear of the Supreme Court

The arguments Bowie makes are not new but their appearance in a mainstream outlet such as the WashPost is extraordinary.

The appearance of Bowie’s piece shows popular, and elite frustration with the Supreme Court is deep. Ordinary Americans have valid justifications for their frustrations with the Supreme Court and other federal courts.

For example, the Supremes ruled that almost half of Oklahoma is in the Muscogee or Creek reservation in McGirt v. Oklahoma on 9 July 2020. The Washington Post claims the ruling threw the state into “complete, dysfunctional chaos.”

In particular, the state has released over 50 prisoners because state rather than federal courts convicted them, The Post alleges. To explain, a 19th Century treaty between the United States and the Muscogee Nation restricts criminal cases involving Native Americans to federal courts. The released felons include at least one convicted murderer.

In other words, the Supremes are making Bowie’s case with decisions such as McGirt v. Oklahoma. Hence, many law and order conservatives will agree with Bowie.

Furthermore, many on the left regard the federal courts as illegitimate because of the Federalist Society and the Republican Party’s court-packing schemes. Notably, five of the nine members of the Supreme Court are conservatives.

Interestingly, McGirt’s author is Justice Neil M. Gorsuch one of the Federalist Society’s handpicked jurists. Hence Bowie’s Judicial aristocracy is here.

In addition, fear of all-powerful courts motivates the Republican Party’s trashing of political norms. Notably, former US Senate Majority Leader Mitch McConnell (R-Kentucky) refused to give Barack Obama’s (D-Illinois) Supreme Court nominee Merrick Garland a hearing. In contrast, McConnell rushed the appointment of another justice; Amy Coney Barrett, to ensure a conservative majority on the court.

The Case Against the Supreme Court

Bowie notes many Americans made such arguments against the Supreme Court in the 19th Century. Indeed, one of the Founders on Mount Rushmore, President Thomas Jefferson (R-Virginia), was the first vocal critic of the Supreme Court.

In particular, Jefferson loathed his cousin Chief Justice John Marshall’s theory of judicial review, author Gordon S. Wood speculates. Jefferson believed judicial review would make the Constitution into “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”*  

Instead of the Supreme Court, Jefferson believed conventions or Congress should settle conflicts over the constitution. Unfortunately, Jefferson never described those conventions.

On the eve of the Civil War, President Abraham Lincoln (R-Illinois) attacked the Supreme Court in his First Inaugural address in 1861. Bowie believes Lincoln thought the Constitution names Congress not the Supreme Court as the enforcer of the Constitution.

This argument is powerful because the written Constitution does not grant the US Supreme Court the power to rule laws unconstitutional. Instead, the court gave itself that power in a case called Marbury v. Madison in 1803. That case created judicial review; the courts’ right to review laws for constitutionality.

Other 19th Century leaders held similar views of the Supreme Court. Notably, President Andrew Jackson (D-Tennessee) ignored the Supremes’ rulings in the infamous Cherokee Land Cases. Jackson refused to enforce the Supreme Court’s rulings that the state of Georgia’s efforts to remove the Cherokees from their lands were unconstitutional.

I think Jackson’s belief was that the President was the United States’ chief magistrate. As such, Old Hickory believed he had the power to interpret and enforce the Constitution. Something that many people today forget is that Jackson was a lawyer and a former member of the Tennessee state supreme court.

FDR vs the Supreme Court

In the 1930s, President Franklin D. Roosevelt (D-New York) revived Jackson’s critique of the court. In contrast to Old Hickory, FDR found himself unable to escape the court’s power. The Supremes struck down FDR’s New Deal in case after case.

In response, FDR proposed the notorious court-packing scheme. Roosevelt II wanted to add a justice to the Supreme Court for every member over 70. Congress rejected court-packing in a stinging rebuke to FDR.

The second Roosevelt’s frustrations with the Supreme Court went far beyond court packing. There is even speculation FDR wanted to appoint a non-lawyer to the Supreme Court to democratize it.

Strangely, FDR’s assault on the Supreme Court increased the institution’s prestige. The excesses of the New Deal and court-packing convinced many Americans that the Supreme Court was a necessary bulwark against an out-of-control chief executive.  

The Growing Rage Against the Supreme Court

Thus, the modern view of the Supreme Court conflicts with historic views of the Constitution and judiciary. Those views are gaining popularity because there are some smart Americans who think the Supreme Court has gone rogue and become a threat to democracy.

Only history will tell where Bowie’s complaints will lead. Notably, I consider President Joe Biden’s (D-Delaware) Presidential Commission on the Supreme Court of the United States an effort to suppress the growing rage against the Supremes.

Can the Supreme Court Survive?

However, Bowie’s essay and its’ Washington Post appearance show Biden’s commission could backfire. Instead of protecting the Supreme Court, the Commission could become a megaphone for complaints about the Court that inspire a movement to reform or abolish the institution.

I think it will take is a few more decisions like McGirt v. Oklahoma and Citizens United to turn most voters and politicians against the Supreme Court. Eventually, anti-court sentiment will reach a tipping point that leads to action. I do not know what that action will be, but it is coming.

One thing is certain. I do not think the present status quo at the Supreme Court can endure in modern America’s insane political environment. The Supreme Court will have to change to survive.

Friends Divided: John Adams and Thomas Jeffersonby Gordon S. Wood page 416.