De-Supremify the Supreme Court with Niko Bowie and Daphna Renan

0:03 [SPEAKER_03]: Hey everyone, this is Leon from Prologue Projects. [SPEAKER_03]: On today's special episode of Five to Four, Peter, Reannon, and Michael are interviewing friends of the pod and Harvard Law Professors, Niko Bui, and Dathna Rennong, but their book Supremacy, how rule by the court replaced government by the people.

0:23 [SPEAKER_03]: Now, you may have noticed a membership going on politically when it comes to the Supreme Court. [SPEAKER_03]: More and more politicians and legal analysts are admitting that something is really wrong. [SPEAKER_03]: The remedies that were once considered radical by court packing are becoming more mainstream.

0:39 [SPEAKER_03]: Miko and Daphna have another idea for remedy, letting Congress take back power from a court that has over 200 years established judicial supremacy as the law of the land. [SPEAKER_03]: This is five to four, a podcast about how much the Supreme Court is us. [SPEAKER_05]: Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have bankrupted our nation, like a lesbian bar and Massachusetts.

1:08 [SPEAKER_05]: I'm Peter. [SPEAKER_05]: I'm here with Michael. [SPEAKER_02]: Hi everybody. [SPEAKER_05]: and rean and hello so I'm out of the loop on this again is the bar bank rupting western Massachusetts or people bankrupting the bar what's going on great question the Boston globe dropped a story about a lesbian bar in western Massachusetts which is apparently I didn't know this a hotspot of lesbian activity not bad of radical woke thinking I thought it was just a bunch of [SPEAKER_05]: Now, this piece I want to be clear is basically a bad faith piece meant to gawk at everyone involved in that and you have to keep that in mind.

1:52 [SPEAKER_05]: It is essentially reactionary propaganda. [SPEAKER_02]: Look at these freaks. [SPEAKER_02]: Yeah. [SPEAKER_05]: That said, it is objectively funny. [SPEAKER_05]: That's why it's such good propaganda. [SPEAKER_05]: And the basic story is that there's a queer bar in Western Massachusetts and they opened a couple years ago as a masks mandatory bar sort of pitching themselves is like we take COVID seriously and they're losing money and so eventually they realize if we want to make money we need to like open up one night like a big night to people who aren't wearing masks so they put out announcement saying [SPEAKER_05]: Hey, from now on Saturdays or masks optional, big uproar, you know, you're being able to your throwing us under the bus, all that all that and then it like, in sort of classic lefty fashion, it evolved from there where like they're doing like community meetings and they're like bad faith lefties who are like, this is violence.

2:54 [SPEAKER_05]: Yes, everyone's saying this is violence, there's a bit where the owner of the bar is like like I'm fifty thousand dollars right in debt and like the the bar is collapsing and then there's a response that's like You're centering yourself as a white person and it's racist That's incredible that's good if I said to someone like I'm fifty thousand dollars in debt like for this thing that we're discussing right now and they were like you're centering yourself game over for you Yeah, like oh [SPEAKER_02]: Damn right as the owner of the bar whose in debt I am absolutely centering myself.

3:27 [SPEAKER_05]: Yeah, yeah, either we're in a physical fist fight or I'm melting down on the spot Screaming something like I am the center. [SPEAKER_02]: I am the center It's I mean that is like my first response is like all sympathy to people who felt safe because of the masking rules [SPEAKER_02]: but you got to drink there more.

3:48 [SPEAKER_02]: You got to spend more money there. [SPEAKER_02]: You got to make it profitable for them or at least let them break even. [SPEAKER_05]: Yeah. [SPEAKER_05]: That's the lesbian bar drama, which by the way, the right wing media is running with and is going to be the heart of the 2028 presidential campaign.

4:05 [SPEAKER_05]: Will you or will you not draw on strike the lesbian bar in Western Massachusetts? [SPEAKER_05]: All right. [SPEAKER_05]: We actually have a couple of guests coming on the pod today. [SPEAKER_05]: A couple of Harvard law professors. [SPEAKER_05]: Nico Bowie and Defna Rennon. [SPEAKER_01]: You said Harvard?

4:22 [SPEAKER_05]: Where's that? [SPEAKER_01]: Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Harvair, Har [SPEAKER_05]: about judicial supremacy, the idea that the courts get to decide what the Constitution means.

4:49 [SPEAKER_05]: Which believe it or not is not something that you have to believe. [SPEAKER_05]: It's not mandatory to believe that the courts decide what the Constitution means. [SPEAKER_05]: Total construct. [SPEAKER_05]: They talk about the origin of the idea and how it has sort of taken on this anti-democratic [SPEAKER_05]: form in our government.

5:05 [SPEAKER_05]: And so, yeah, we wanted to talk to them because they're pitching a different understanding of the constitution that I think 99% of the population has. [SPEAKER_05]: And it's an interesting one at a time when I think we need to be both on the left and as of broad society, sort of just rethinking the relationship between the people, the courts, Congress, the president, and the constitution.

5:28 [SPEAKER_01]: Yeah, yeah, and the role that the federal judiciary plays in democracy is this construct and the way we've all now accepted it for decades and decades and decades is that actually democratic is that actually reflective of what the founders were thinking and talking about, you know, and is it healthy exactly.

5:47 [SPEAKER_05]: Yeah. [SPEAKER_05]: All right, without further ado, here is our interview with Nico Booye and Daphna Rennan. [SPEAKER_05]: Say hi, guys. [SPEAKER_05]: Say hi. [SPEAKER_05]: Hello. [SPEAKER_00]: Thanks for having us. [SPEAKER_05]: You two are professors at Harvard Law School. [SPEAKER_05]: Obviously, it's our position that there should never be more than one professor from Harvard Law in one place.

6:10 [SPEAKER_05]: Bye. [SPEAKER_05]: until there's a statute. [SPEAKER_05]: I guess we're just going to do this. [SPEAKER_05]: That's right. [SPEAKER_05]: We're full of law people at the end of the day and enormous or nothing. [SPEAKER_05]: You guys have a book, Supremacy, how rule by the court replaced government by the people, which I think is out now, right?

6:30 [SPEAKER_05]: As this drops, it is out, and it's a book about [SPEAKER_05]: Judicial supremacy and perhaps other types of supremacy, if I'm reading between the lines correctly there. [SPEAKER_05]: And I think maybe it makes sense for one of both of you to explain to our audience what judicial supremacy is at a high level.

6:50 [SPEAKER_04]: Sorry, so judicial supremacy is just the idea that when the Supreme Court interprets the Constitution, that's what the Constitution means. [SPEAKER_04]: And so even if Congress passes a law, saying, we think the 15th Amendment empowers us to pass the voting rights act. [SPEAKER_04]: If five justices on the courts, they actually, the 15th Amendment means something totally different.

7:11 [SPEAKER_04]: No, you're wrong. [SPEAKER_04]: Then we have to live with that until the Constitution is amended or the court changes its own mind. [SPEAKER_05]: I think it's probably news to a lot of our listeners that there are people who question this framework. [SPEAKER_05]: This is sort of how you come to understand the court's role.

7:27 [SPEAKER_05]: That it is the arbiter of what is constitutional and what is not, it's the arbiter of the meaning of federal statutes, et cetera. [SPEAKER_05]: It is something that is historically somewhat novel and you outline the origins of it's and the coming of age of judicial supremacy in an interesting way because I think a lot of defenders of the idea.

7:51 [SPEAKER_05]: argue that it serves as a way to protect the little guy, to protect the rights of minorities, you know, if a law is passed that might infringe upon someone's rights, a court steps in and says, no, you can't do that. [SPEAKER_05]: That's unconstitutional, that violates the Constitution or a statute or whatever, but you describe the judicial supremacy in the book as something that comes of age as a [SPEAKER_05]: reconstruction and all throughout this period, the idea of judicial supremacy is being sort of debated and utilized by reactionaries, very expressly, as a tool of white supremacy and not white supremacy in like a abstract 2026 kind of way, but in the sense that there were people arguing for it expressly in the 1850s, for example.

8:44 [SPEAKER_05]: So can you walk us through a sort of short version of that history, [SPEAKER_05]: where the debate about judicial supremacy is happening sort of at the same time as the debate around dreads God and slavery. [SPEAKER_00]: Yeah, so the first time that the Supreme Court rejects the constitutional judgment reflected in a federal statute in a question of great consequence is dread Scott at the 1857 case where the court basically says federal statutes limiting the spread of slavery and federal territory like the Missouri compromise are unconstitutional and our view because they interfere with the property rights of enslavers and this is really the moment where [SPEAKER_00]: the court for the first time rejects an express judgment of Congress about what the Constitutional allows it to do with its legislative authority.

9:35 [SPEAKER_00]: And the reaction to that among abolitionists and anti-slavery Republicans is not, okay, well, the court has said it, so that's the final word, and now we all need to accept that the Constitution doesn't allow Congress to limit the [SPEAKER_00]: it's organizing and voting and electing members of Congress that passed federal laws that notwithstanding dreads got limit the spread of slavery, extend birthright citizenship to black Americans, which was the other crucial aspect of the dreads got holding was a rejection of that.

10:10 [SPEAKER_00]: And say, it's not just members of Congress' ability, it's their responsibility, it's their duty, [SPEAKER_00]: to give meaning to the Constitution and to reject the interpretations of the Constitution from the Supreme Court that interfere with the vision of who we want our country to be and what we understand the Constitution to stand for.

10:32 [SPEAKER_00]: There's a party that kind of comes into being on this message that it would just defy self-government by the people. [SPEAKER_00]: take hand this power over to the court. [SPEAKER_00]: And it's really instrumental in the way abolitionists are thinking about their relationship with the Constitution because there's a debate within abolitionism at the time of is the Constitution what the justice is say it is?

10:55 [SPEAKER_00]: And if it is then maybe we shouldn't vote, maybe we shouldn't participate in this project that's just bankrupt to the core. [SPEAKER_00]: or can we through electing members of Congress that adopt different laws change the meaning of the Constitution? [SPEAKER_00]: And its abolitionists like Garrett Smith and then Frederick Douglass that embraced this more democratic constitutionalist vision and that we argue are really the foundation of this tradition of understanding that members of Congress through federal statutes can give binding meaning to the Constitution.

11:27 [SPEAKER_02]: I'm glad you mentioned Democratic constitutionalism. [SPEAKER_02]: I've read some academic works that pose the alternative to judicial supremacy as something they call departmentalism, the idea that each department or branch of government is sort of in charge of interpreting the constitution for itself.

11:45 [SPEAKER_02]: The president interprets the constitution, the executive branch follows him, the Supreme Court interprets the constitution, and the lower courts follow that, Congress interprets the constitution for itself. [SPEAKER_02]: that's not really what you guys offer. [SPEAKER_02]: You offer is the alternative to judicial supremacy this idea of democratic constitutionalism.

12:02 [SPEAKER_02]: So could you maybe explain to our listeners what that is? [SPEAKER_04]: Yeah, you're right. [SPEAKER_04]: So it's not departmentalism. [SPEAKER_04]: It's not this idea that everyone gets to pick what their constitution means for them. [SPEAKER_04]: Let a thousand constitutions bloom. [SPEAKER_04]: But instead, [SPEAKER_04]: If you're trying to figure out what does the constitution mean, there should be some democratic mechanism for sitting at the top of the hierarchy that everyone else follows until it's changed.

12:32 [SPEAKER_04]: And for judicial supremacists, the top of the hierarchy is a Supreme Court opinion. [SPEAKER_04]: And so what that means is if you're some random judge, [SPEAKER_04]: and you have a case before you and you think the Constitution means the government can do that. [SPEAKER_04]: But the Supreme Court in opinion has said the government can't.

12:50 [SPEAKER_04]: Then you kind of have to let your own interpretation go. [SPEAKER_04]: You have to defer to the Supreme Court's opinion. [SPEAKER_04]: That's what judicial supremacy calls for. [SPEAKER_04]: And the tradition that we are talking about in the book is instead of a Supreme Court opinion, put a federal statute up there.

13:09 [SPEAKER_04]: And this is actually a pretty old tradition. [SPEAKER_04]: This is the tradition that the area Americans inherited from Great Britain because in the UK, an act of parliament is the best interpretation of what the British Constitution means, which is not to say that every [SPEAKER_04]: or that every time a permit does something, it's constitutional.

13:31 [SPEAKER_04]: But in the UK, there's no other institution that has the power to, you know, basically defy this national law. [SPEAKER_04]: If you don't like the national law, you have to. [SPEAKER_04]: elect a new parliament and change what that law means courts can't just defy national law. [SPEAKER_04]: So here the tradition we're talking about is analogous it's saying that the real strength of federal statutes as far as the people who we describe believe is they can be wrong but they can be changed.

14:03 [SPEAKER_04]: You can elect a different Congress to change what previous statutes mean. [SPEAKER_04]: And for abolitionists, that was key because if you think of like, and what was the typical abolitionist doing in the 1850s, it losing, you know, like Congress's passing laws like the Fusion of Slave Act, the Supreme Court is interpreting the Constitution to say, Congress has a duty to round up, [SPEAKER_04]: So it's not as though abolitionists were victorious, but what I think gave someone like Frederick Douglass Hope was the sense that if we agitate and rally public opinion enough, even though we are losing a lot, if we change public opinion, we can start to win, and once we get enough people in Congress who agree with us, Congress has that power by statute.

14:56 [SPEAKER_04]: to reverse these prior precedents that are pro-slavery and to replace them with an interpretation that's anti-slavery. [SPEAKER_05]: Maybe that leads into a somewhat obvious if you're a nerd question. [SPEAKER_05]: And I think this is like, this has come up a lot in the context of discussions about court reform, for example, but Congress is currently very dysfunctional.

15:20 [SPEAKER_05]: Not passing a ton of laws, perhaps the Republican Party is enthralled to an ideological movement that doesn't really embrace the power of Congress. [SPEAKER_05]: That sort of poses the problem for court reformers and maybe you could argue for this vision of the constitution because it does seem to require an active Congress, or at least would benefit from an active Congress.

15:44 [SPEAKER_05]: I think you could imagine a world where the court and Congress are in constant conversation, right? [SPEAKER_05]: The court is saying, here's what this federal statute means. [SPEAKER_05]: Congress says, no, we don't really think so. [SPEAKER_05]: Actually, you got that a little bit wrong, [SPEAKER_05]: And you could see that dynamic being very functional.

16:03 [SPEAKER_05]: But without that dynamic, is this functional? [SPEAKER_05]: I mean, are we sort of saying, well, it would be nice if Congress was more active or with this sort of framework in your mind's fur Congress to action, right? [SPEAKER_05]: It sort of encourages them to be more active than they actually are by giving them a power that they previously didn't really have.

16:24 [SPEAKER_00]: Yeah. [SPEAKER_00]: So, one thing we're saying is that the Congress we have today with all of its many dysfunctions is the product of judicial supremacy. [SPEAKER_00]: So, if you think about the laws across history that Congress tried to enact that would have eliminated big money's stark influence on our elections, making our government more representative and addressing discrimination in the franchise.

16:49 [SPEAKER_00]: Giving Congress tools to respond to a runaway president, so checking executive over each through things like a legislative veto that would have allowed Congress to reject how the president uses more powers authority or emergency authorities. [SPEAKER_00]: These are all things that Congress enacted and that the court invalidated, the court rejected those federal statutes and we can't have those federal statutes structure who Congress is and what kind of power Congress has.

17:14 [SPEAKER_00]: So our Congress today is the product of that judicial supremacy. [SPEAKER_00]: Our Congress today is also the product of kind of a learned helplessness vis-a-vis the court because the court has aggressively restricted what kind of legislative authority it will recognize as permissible under the Constitution.

17:34 [SPEAKER_00]: And so, a Congress that sees the court as giving the final say on what the parameters of Congress' legislative authority can look like is a much much more cabinet or restrained Congress in terms of what it can try to achieve. [SPEAKER_00]: Whether it's addressing, we shall and partisan gerrymandering, whether it's addressing, reproductive choice, whether it's addressing the climate crisis.

17:56 [SPEAKER_00]: The last piece I'll offer is that it's not all or nothing. [SPEAKER_00]: We are now at an extreme outer bound of what judicial supremacy can look like in the United States. [SPEAKER_00]: And so there are ways that we can limit the courts' final say over the Constitution, that for those who are kind of like uneasy given the state of our current politics eliminating entirely this judicial role in horizontal review, we can limit it.

18:21 [SPEAKER_00]: We can restrain it. [SPEAKER_00]: One idea that was on the table during reconstruction in a cross-US history and remains available to us today is to pass a statute that says, look, there should be some consensus among the justices, whether it's seven justices, eight justices, that say there's no plausible way to defend the constitutionality of this statute before you can invalidate a federal law.

18:44 [SPEAKER_00]: It shouldn't be that a thin majority on controversial theories of the constitution, [SPEAKER_00]: can reject what sometimes a generation has organized and voted to enact into a federal statute. [SPEAKER_02]: So I want to hit on a distinction you guys make in the book that I think is important because I think listening to this you might wonder well where does that leave judicial review at all?

19:07 [SPEAKER_02]: But you make a sharp distinction between what you call horizontal review and vertical review and maybe you could talk a little bit about where that comes from what that is and why it's an [SPEAKER_00]: Yeah, great. [SPEAKER_00]: So horizontal review is the idea that we've been talking about, the courts claimed powered or reject the constitutional judgment reflected in an act of Congress.

19:29 [SPEAKER_00]: And that is nowhere in the Constitution. [SPEAKER_00]: It was hugely debated from the founding. [SPEAKER_00]: And we trace voices throughout history that have argued against it in the United States. [SPEAKER_00]: Vertical review is right there in the Constitution, it says our federal laws are supreme and so they need to be enforced against states that would defy these federal commitments and sometimes it takes judges to enforce those federal commitments against states.

19:56 [SPEAKER_00]: And in this reconstruction period that we've been talking about, one thing that you see is Congress is enacting laws to protect its own legislation from the court, so preventing the court from second-getsing the reconstruction acts that are extending Black suffrage to the south for the first time and Congress is stripping the court's jurisdiction to reject the constitutionality of that act.

20:18 [SPEAKER_00]: And at the same time, Congress is also enacting laws [SPEAKER_00]: that make it possible for courts to enforce these new federal guarantees of equal protection against states. [SPEAKER_00]: And one of those laws is the clan active 1871, really important statute that a piece of it's codified today in section 1983.

20:37 [SPEAKER_00]: So we know it is section 1983. [SPEAKER_00]: And this is the federal statute that says courts make sure those acting under color of state law are not violating constitutional rights, federal constitutional rights. [SPEAKER_00]: That's how we have [SPEAKER_00]: federal constitutional rights have meaning in a system of state actors, and that's the statute that's at the core of cases like Brown versus Board of Education, where the court says, OK, under Section 1983, we have the authority to say states in the south, segregation in schools is unconstitutional.

21:08 [SPEAKER_00]: It's a violation of equal protection. [SPEAKER_00]: So that's vertical review. [SPEAKER_00]: And importantly, it's vertical review by Grace of Congress. [SPEAKER_00]: It's happening pursuant to federal [SPEAKER_01]: You already mentioned Brown V board, which is what I was going to bring up.

21:21 [SPEAKER_01]: It's an example of a vertical review, which in your argument is a system in which the Supreme Court is interpreting the constitution in a democratic constitutionalist method. [SPEAKER_01]: It's a good example of. [SPEAKER_01]: Now, that war in court, that hands down Brown V board and other really importantly in Mark's Supreme Court.

21:41 [SPEAKER_01]: decisions that we look back on as like the era of a great progressive liberal supreme court. [SPEAKER_01]: That court, though, is criticized as an activist court. [SPEAKER_01]: And it's argued by reactionaries conservatives that that court actually is an example of a court engaging in judicial supremacy.

21:59 [SPEAKER_01]: Judicial activism, a court sort of like coming in and meddling with political affairs when the court actually should sort of act with restraint is the conservative [SPEAKER_01]: bad faith argument, but that is the argument. [SPEAKER_01]: And you talk about how, no, that Warren court, Brown V. Board is one example, but there are other cases as well.

22:17 [SPEAKER_01]: That court was actually engaging in democratic constitutionalism. [SPEAKER_01]: Can you give some other examples here of what you're talking about, that vertical review and how the court was engaging in that way, which is actually an example of judicial restraint that we don't see today.

22:34 [SPEAKER_04]: Yeah, so the really short version of the argument in the book is that courts should enforce federal law, they should not defy federal law. [SPEAKER_04]: That's basically it and for the last 60 or so years when people have thought or argued or debated about judicial review or the court, they tend to say like, here we have on one side these unelected judges.

22:58 [SPEAKER_04]: And on the other side, these elected state legislators were elected president or elected Congress or elected anybody. [SPEAKER_04]: And so it's a debate about like popular majorities versus the court and how there are some times where you don't trust majorities, that's the framework for the debate.

23:16 [SPEAKER_04]: It's like court's versus elected people. [SPEAKER_04]: But one thing that the folks who we found in archives and put in the book, their stories that they argued is when a court enforces a federal law, it might strike down a state law. [SPEAKER_04]: you know, so if like Congress passes a civil rights act or something, it says no segregation and then some states start segregating.

23:41 [SPEAKER_04]: If a court comes in and strikes down that state law, it's court versus elected people. [SPEAKER_04]: Sure, yeah. [SPEAKER_04]: But taking that one step more broadly, it's actually Congress versus a state. [SPEAKER_04]: It's a matter of authority or congressional authority. [SPEAKER_04]: And so that's really what Vertical Review is about.

23:59 [SPEAKER_04]: Is Congress, at times, has enticled courts. [SPEAKER_04]: Here's your job. [SPEAKER_04]: Your job is to start enforcing these statutes. [SPEAKER_04]: And one of those statutes, like the Klan Act, gives course a lot of discretion. [SPEAKER_04]: And it says, stop states from violating the Constitution.

24:15 [SPEAKER_04]: And so the Supreme Court has used that in Brown. [SPEAKER_04]: It used that in Rovers' Wade. [SPEAKER_04]: in a burger filver says Hodges in all kinds of cases to strike down state laws, much in the same way that Congress passed the Voting Rights Act and the courts and force that also strikes down state laws.

24:34 [SPEAKER_04]: But I think the key insight from thinking of judicial power this way. [SPEAKER_04]: is simply because a court is enforcing this law does not mean the court gets it right. [SPEAKER_04]: It's not as though whenever a court enforces a federal law or engages in vertical review, the outcome is correct.

24:52 [SPEAKER_04]: Courts also issue cases like lockner or cedar pointer dobs cases that I personally would object to. [SPEAKER_04]: But the key insight is because the courts are doing this by virtue of Congress, because the court is subject to federal law, Congress can reverse the court. [SPEAKER_04]: And so part of the argument here is that when a court issues a decision, [SPEAKER_04]: that people object to.

25:17 [SPEAKER_04]: It's possible to override that decision not by waiting for justices to die and get replaced. [SPEAKER_04]: But by passing a new federal statute, one that says court in dobs, you got this wrong or court in, you know, these done cases, you know, you're letting too many people die. [SPEAKER_04]: That's not what the second amendment needs.

25:34 [SPEAKER_01]: what's really compelling about the history of this like that there was a liberal embrace of judicial supremacy too. [SPEAKER_01]: And so when you're talking about like part of the problem of a dysfunctional congress is judicial supremacy, but when we're tracking the history of it, I think what y'all do so powerfully is highlight this debate between [SPEAKER_01]: vertical and horizontal review, judicial supremacy versus what you guys call democratic constitutionalism.

25:59 [SPEAKER_01]: This debate was happening, in fact, at the constitutional convention, it was happening before the Civil War. [SPEAKER_01]: It was certainly happening during reconstruction, and then of course, second reconstruction, and that there were people fighting back, like you say, taking up this debate.

26:13 [SPEAKER_01]: But what you see after second reconstruction, you guys outline is actually a liberal embrace of judicial supremacy that liberals started to say, well, sometimes judicial supremacy works for us. [SPEAKER_01]: Like we get the wins and it's just that, you know, sometimes. [SPEAKER_01]: conservative justices are like put on the Supreme Court and they'll get the wins sometimes but we get the wins the other times this kind of thing.

26:37 [SPEAKER_01]: I wonder if you guys can talk about like that liberal embrace and how there was sort of acceptance across the board that gets us to an ineffective Congress and a Supreme Court that is like raining over all of this. [SPEAKER_04]: Yeah, so, you know, as you point out through the 20th century, lots of people embrace democratic constitutionalism, and one example is like the Boding Rights Act.

27:01 [SPEAKER_04]: So, before the Boding Rights Act, when the Supreme Court was interpreting the 15th Amendment, which prohibits subriding the right to vote, because of race. [SPEAKER_04]: The court looked at things like literacy tests and said, we don't see race here. [SPEAKER_04]: We just see an attempt to protect an educated franchise.

27:18 [SPEAKER_04]: And therefore, these literacy tests across the South are constitutional. [SPEAKER_04]: And when Congress passed the Boating Rights Act, which was called an act to enforce the 15th Amendment, Congress said, no, we think literacy tests are unconstitutional. [SPEAKER_04]: And at the time, the court was like, oh, you know, great.

27:33 [SPEAKER_04]: We support what you're doing here. [SPEAKER_04]: We don't think Congress is only role here is to just enforce our own judgments. [SPEAKER_04]: But the court also expressed some skepticism and said, you know, but we are a little worried about Congress taking away rights. [SPEAKER_04]: We don't want Congress to do that.

27:48 [SPEAKER_04]: And a generation later, after the court had issued decisions like Rovers' Wade, in 1981, Ronald Reagan took office, a pretty conservative Congress took office, and one of Senator Jesse Helms of North Carolina, [SPEAKER_04]: So let's pass a federal statute. [SPEAKER_04]: Let's do what they did with the Voting Rights Act, which I hate.

28:13 [SPEAKER_04]: And just apply it to cases I don't like. [SPEAKER_04]: And for some people who opposed Helms' bill, they fought it on policy grounds. [SPEAKER_04]: And I said, that would be a bad idea. [SPEAKER_04]: Bad law, let's not do it. [SPEAKER_04]: But a lot of people, particularly law professors and other people have been thinking about these questions, they argued that Congress should not be able to reverse row, that when the court weighs in, that Congress is really limited to what the court says it can do, and they argued that the court has allowed Congress to reverse the court in some instances, like the voting rights act, but not every instance, like with row.

28:59 [SPEAKER_04]: When the court is with us, let's not get in the way, and that just turned out as far as row is concerned, a really bad strategic error. [SPEAKER_04]: And they defeated this bill, but a decade later, [SPEAKER_04]: When it looked like the court might reverse row because conservatives during that 1981, 1982 to beat, founded the Federalist Society focused on getting justices on the court.

29:25 [SPEAKER_04]: You know, really embrace like, okay, if we're all in favor of judicial supremacy, let's get the one institution that matters. [SPEAKER_04]: and there was a debate in the early 1990s to codify row on the theory that the conservative court might reverse it. [SPEAKER_04]: But codifying row would require supporters of reproductive freedom to make compromises with other legislators.

29:48 [SPEAKER_04]: you know, one of the big issues was whether miners would have to receive parental notification before getting an abortion. [SPEAKER_04]: And after Bill Clinton appointed Ruth Bader Ginsburg to the Supreme Court, and it looked like there was this durable majority on the court in favor of Ro.

30:03 [SPEAKER_04]: The support for a federal statute really collapsed, because supporters of Rose said, we don't have to do anything. [SPEAKER_04]: We don't have to protect these rights. [SPEAKER_04]: The courts are going to protect them. [SPEAKER_04]: We're better again for exon the court. [SPEAKER_04]: There's like at least a six three majority in favor of this.

30:18 [SPEAKER_04]: We're fine. [SPEAKER_04]: And that was just another strategic error that we think really is a consequence of believing that the important constitutional rights someone cares about can be protected by just leaving it in the hands of the least accountable people in the federal government.

30:52 [SPEAKER_05]: How much of the shift away from judicial supremacy is just vibe shift, as opposed to we're doing something structural here, laws are passed, men with guns are sent outside one first. [SPEAKER_05]: How much of this is just everyone needs to be thinking about this differently, everyone in Congress or some significant plurality of Congress people need to be stepping up and saying, this is how we understand the constitution.

31:19 [SPEAKER_05]: What's the percentage vibe shift and percentage structure change? [SPEAKER_04]: To be honest, it's like a hundred percent vibes. [SPEAKER_01]: So, it is anyway, right? [SPEAKER_04]: Like, our position is just like everything is. [SPEAKER_01]: Yeah, yeah. [SPEAKER_04]: I mean, just to be clear about it, like, it's not as though the constitution says anything about the court's power here.

31:41 [SPEAKER_05]: The constitution says nothing. [SPEAKER_04]: but it does give Congress explicit authority to regulate the courts. [SPEAKER_04]: And there is no legal prohibition against Congress regulating the court. [SPEAKER_04]: There's no constitutional prohibition. [SPEAKER_04]: So it really comes down to sort of voter expectations and members of Congress' expectations about who was in charge here.

32:05 [SPEAKER_04]: And one way to think about it is imagine that a future Congress passes a statute that says, the justice is can't take brides. [SPEAKER_04]: Like brides are now illegal if you're Supreme Court justice. [SPEAKER_04]: No, you know, airplanes, no vacation RVs, whatever. [SPEAKER_04]: and the court looks at that in five justices say now I'm sorry we have a constitutional right to take brides.

32:29 [SPEAKER_04]: I think for a lot of people listening what happens next is is kind of self evident. [SPEAKER_04]: It's like oh I guess we can't ban the justices from taking brides. [SPEAKER_04]: And the position of our book and all the people in it are like no that's that's wrong. [SPEAKER_04]: That's right.

32:44 [SPEAKER_04]: You know backwards we like who are they who are they to resist this anti-bride law like what are they [SPEAKER_04]: And so over the years Congress has used a ton of different tools in order to ensure that the justice is respect that are a lot. [SPEAKER_04]: Those tools include Congress has changed the number of justices.

33:06 [SPEAKER_04]: Congress has changed the kinds of cases the court has allowed to hear. [SPEAKER_04]: Congress has changed when the court has allowed to issue things like injunctions. [SPEAKER_04]: During the labor movement, when courts were going around just breaking up every strike they could see, Congress passed a law thing, no more injunctions during labor strikes, unless you meet these criteria that we outline.

33:28 [SPEAKER_04]: And pretty much everything about the court is subject to federal law, including where it sits, whether it can pay for air conditioning, how many clerks they have when they can go on vacation, just everything, every single thing they can do. [SPEAKER_05]: And now you're only implying this, but our favorite types of court reforms are the amisseration of the Supreme Court style reforms.

33:55 [SPEAKER_05]: Yeah. [SPEAKER_04]: Yeah, and I think that the point to just raise them is that the justices did not just like descend from on high and like pop out of Zeus's head or whatever and literally from on low from the basement from the basement of Congress, Congress gave them their building. [SPEAKER_04]: And so to the extent that we as voters or members of Congress as legislators see the court as this danger to constitutional democracy rather than as a guardian.

34:23 [SPEAKER_04]: We have lots of members from the past, like Roscoe Conkling, who's like, it is our duty to stop them. [SPEAKER_04]: It is our duty to hold those justices accountable to our view of what the Constitution means, not the other way around. [SPEAKER_05]: One thing that sort of jumped out to me about your narrative about Dred Scott, and the early days of the debates about judicial supremacy.

34:43 [SPEAKER_05]: is it if you look at the Lincoln Douglas debates where Lincoln is sort of taking the position that course the court can't do this of course the the court can resolve the issue visavie dreads Scott perhaps but does not have the power to make a considerably broader ruling than that that affects the entire country.

35:01 [SPEAKER_05]: You look at that debate in isolation, and you could see Lincoln as being kind of incredulous. [SPEAKER_05]: Like, what are you talking about? [SPEAKER_05]: Right? [SPEAKER_05]: Of course. [SPEAKER_05]: If it hadn't been framed as sort of essential to our constitutional structure, this feels ridiculous that a small handful of judges can just kind of snap their fingers and resolve massive political questions that are upending the country.

35:23 [SPEAKER_00]: To your point about Lincoln Douglas, there's these scraps of notes from Lincoln where he has the dread spot decision as kind of working its way through the courts. [SPEAKER_00]: He's saying like, what would it actually mean for our governing creed to be? [SPEAKER_00]: Whatever the Supreme Court decides settles this question of slavery.

35:41 [SPEAKER_00]: And he's saying, we'd have to accept this final authority of the Supreme Court not just with respect to slavery but with respect to every constitutional question that we as a country vigorously debate and you can kind of like feel his incredulousness in this note of like how could that be consistent.

36:01 [SPEAKER_00]: with self-government and in the Lincoln Douglas debate he's turning to Stephen Douglas and he's saying, this man is not defending slavery to you as moral. [SPEAKER_00]: He's basically saying thus say at the Lord. [SPEAKER_00]: That's what Lincoln says. [SPEAKER_00]: He's treating the court as kind of as thus say at the Lord.

36:18 [SPEAKER_00]: And if you have that attitude, then whatever the court says next, that will be the same response. [SPEAKER_00]: And Lincoln is saying that cannot be a constitutional democracy. [SPEAKER_00]: That is like antithetical. [SPEAKER_00]: to who we are as a democratic republic. [SPEAKER_01]: You know, something I was really struck with reading this book was you both talk a lot about organizers and communities, certain sectors.

36:43 [SPEAKER_01]: Let's say contingents who are advocating over the course of American history for a different relationship between the Supreme Court, between the [SPEAKER_01]: and democracy, essentially. [SPEAKER_01]: And what I think I walked away with was, there's like a little bit of sadness, I feel, at judicial supremacy and what it's done to like political creativity.

37:08 [SPEAKER_01]: As we've said, everybody just thinks, like, I guess this is what the Supreme Court does. [SPEAKER_01]: And I guess they can just do this with laws. [SPEAKER_01]: When I guess they just act this way and we just all have to accept it. [SPEAKER_01]: And so, [SPEAKER_01]: what I like about the book we get questions all the time about yeah like the Supreme Court sucks it's so terrible but what am I supposed to do about it what can I do just as a regular person or just organizing in my community what should I be telling my elected representatives who don't seem to care about the Supreme Court at all?

37:39 [SPEAKER_01]: And so what do you say about like next steps for the common person that like cares about this and how we can actually like reintroduce creativity into the branches of government and how they orient to one another? [SPEAKER_00]: Yeah, what you're describing is exactly what we saw in the materials that we looked at when you had a more democratic constitutionalism and members of Congress thinking that look we threw this statute, which did embody an understanding of the constitution that we think is right and just immoral and not just accurate on the originalist terms of the Supreme Court or whatever [SPEAKER_00]: is a much richer and more multifaceted way to talk about what the Constitution should mean and what obligations government has under it.

38:29 [SPEAKER_00]: You saw that in the debates for the Civil Rights Act of 1875. [SPEAKER_00]: When members of Congress are saying, we need to discuss what discrimination needs and what protections [SPEAKER_00]: of like human rights and understand the reconstruction amendments as a responsibility to Congress to do just that.

38:53 [SPEAKER_00]: So it's exactly that kind of constitutional creativity and responsibility that we think is possible in a democratic constitutionless structure that we really lost under judicial supremacy. [SPEAKER_00]: And in terms of what people can do, I think as we move [SPEAKER_00]: Every law that we think Congress should enact, whether it's a new voting rights act, whether it's protections for the climate crisis or limiting the role of dark money and elections, for all of these incredibly important substantive moves forward as a democracy to stick, we also need to limit the control.

39:33 [SPEAKER_00]: the kind of chokehold that the court has over constitutional understandings. [SPEAKER_00]: And so we can pair in urging members of Congress to pass those kinds of laws, also embedding in those laws limits on the court's authority to second-guess Congress's constitutional judgment. [SPEAKER_00]: And again, it doesn't need to be all or nothing.

39:51 [SPEAKER_00]: It can look like a super-majority or a consensus rule that says, [SPEAKER_00]: You need, you know, seven or eight justices to agree that there's no plausible understanding of the constitution that would say the statute is legitimate before the court can invalidate it. [SPEAKER_00]: That's a kind of shorter measure than saying the court can review it at all.

40:07 [SPEAKER_00]: But to see that the two as kind of one in the same, that we need to advance the substantive agenda and that substantive agenda has to bring with it limiting the courts power over the final say on what the constitution can be. [SPEAKER_00]: Yeah, yeah. [SPEAKER_01]: And I think that just gets to like the theory, the thesis of our podcast, right, which is like politics are a field of contention.

40:29 [SPEAKER_01]: We have to see the law, including our legal institutions as politics and therefore in the field of contention as well, including like the way the institutions interact with each other and all of us, you know. [SPEAKER_01]: Okay, is there anything like either one of you, anything we didn't get to, is there something you want to say about the book or anything you want listeners of this episode to kind of like walk away with?

40:52 [SPEAKER_04]: I mean, I think the main thing that we hope listeners of your podcast, I think they already do come away with it, but the readers of the book come away with is just like the constitution does not belong to them. [SPEAKER_04]: I know it, like I feel like as someone who teaches constitutional law, I'm constantly trying to rationalize these these views of the constitution that I would just never reach on my own even after thinking about it for a long time and and that that's just not how constitutional self government works.

41:31 [SPEAKER_04]: to interpret the Constitution does not guarantee good interpretations. [SPEAKER_04]: It does not mean we will always win. [SPEAKER_04]: It does not mean Congress will always do what we like. [SPEAKER_04]: You know, the current Congress, I do not want them to pass more laws, because I don't like the kinds of laws they're passing, but I think does mean a respect for democracy as an idea and the ability of all of us, [SPEAKER_04]: to rally our neighbors, you know, to organize our opponents, to really try to persuade people that our understanding of the constitution is the right one.

42:07 [SPEAKER_04]: And that's what democracy is supposed to be about. [SPEAKER_04]: And I don't think it matters whether someone says we're a Republican or a democracy either way, it's based on self-government and what we currently have is not that. [SPEAKER_04]: Right, that's a great thing to wrap on. [SPEAKER_01]: Thank you both so much.

42:23 [SPEAKER_05]: We appreciate it, your book. [SPEAKER_05]: A lot of people are putting out Supreme Court books these days. [SPEAKER_05]: And you're using a lot of them, yeah, the email us and a lot of them are just fighting our shit, you know. [SPEAKER_05]: You know. [SPEAKER_05]: It was nice to see you.

42:36 [SPEAKER_01]: They're having a original ideas. [SPEAKER_01]: Yeah. [SPEAKER_01]: Yeah. [SPEAKER_04]: If you want to, if you want to put that in writing, we can put that on the back of the book. [SPEAKER_02]: Five to four is presented by pro-lock projects. [SPEAKER_02]: This episode was produced by Allison Rogers.

43:01 [SPEAKER_02]: The on-nafoc provides editorial support. [SPEAKER_02]: Our website was designed by Peter Murphy. [SPEAKER_02]: Our artwork is by Teddy Blanks at Chips and Y. [SPEAKER_02]: And our theme song is by Spatial Relations.