As the Democrats contemplate their next possible window of power, proposals to “pack” the Supreme Court have become mainstream. The usual suggestion is to add four justices to make the current 6-3 conservative majority a 7-6 liberal one. It was six years ago that Senate minority leader Chuck Schumer warned, “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” Other party leaders, such as Joe Biden, were for a time unwilling to go along with such plans. They’ve come around. Nikolas Bowie and Daphna Renan’s new book, Supremacy: How Rule by the Court Replaced Government by the People, provides the historical argument to support Court-packing, or other devices for Court-curbing. Bowie and Renan express liberals’ buyers remorse for embracing judicial supremacy in the mid-twentieth century. They resurrect a lot of century-old progressive criticisms of judicial power, and proffer a novel argument that the iconic Brown decision was really a changeling.

　　The Court’s recent emphasis on originalism or “history and tradition” has produced a boom in “law-office history.” Alas, historians have too often prostituted themselves to lawyers’ needs for history in high-profile constitutional law cases. Alfred H. Kelly, the historian who worked with the NAACP on the Brown case, was the only one that I know of who admitted as much. He submitted an originalist brief to convince the Court that the framers and ratifiers of the Fourteenth Amendment intended to prohibit school segregation. The Court set aside the brief, saying that the history was too vague and that we “cannot turn back the clock” to 1868. Kelly then published a confessional article entitled “Clio and the Court: An Illicit Love Affair.” In it, he said that his brief “manipulated history in the best tradition of American advocacy, carefully marshalling every scrap of evidence in favor of the desired interpretation and carefully doctoring all the evidence to the contrary, either by suppressing it when that seemed plausible, or by distorting it when suppression was not possible.” He traduced the standards of the historical profession, but he did it for a good cause.

　　Harry Blackmun tried to provide a historical grounding for abortion rights in Roe v. Wade, based on two articles by a law professor who was general counsel for NARAL (then the National Association for the Repeal of Abortion Laws). The Court largely abandoned this line of defense in Casey (1992), and Justice Samuel Alito’s opinion in Dobbs set the record straight. Historians even tried to assert the idea that homosexual sodomy was deeply rooted in the country’s history and tradition, an idea that Justice Byron White aptly described as “at best, facetious.”

　　Bowie and Renan (both Harvard Law School professors, having clerked for Justices Sotomayor and Ruth Bader Ginsburg, respectively) make the case that the Supreme Court has usurped and abused the power of judicial review. They especially condemn “horizontal” judicial review—the Court overturning acts of Congress. They come close to saying (contra Hamilton in Federalist #78 and Marshall in Marbury v. Madison) that the power was not intended by the Founders, and they urge that it should be curtailed or eliminated. They admit that “vertical” review of state laws was part of the original plan and necessary to maintain the Union. But, they claim, vertical review has also been abused. The only minority right that the Court has consistently upheld is that of the wealthy. “Time and again the Court asserted that power to set aside federal law in order to reinforce regressive ideas: racial caste, corporate domination, and others.” Oliver Cromwell famously told his portraitist to depict him “warts and all.” Bowie and Renan give us a Supreme Court portrait that is nothing but warts.

　　As Bowie and Renan tell the story, the good guys (abolitionists, progressives, labor unions, feminists) were the original opponents of judicial supremacy. Thus they feature Dred Scott as the prototype of judicial supremacy, which has gone hand-in-hand with white supremacy. (They call their book “a constitutional history that puts the antislavery struggle at the center of things,” and it does have a whiff of the 1619 Project about it.) This all changed with Brown v. Board of Education in 1954. Judicial power could now be used for good causes, not just to maintain white supremacy and property rights. The Warren Court and its successors were able, inter alia, to reapportion state legislatures and congressional districts, expand the rights of criminal defendants, and secure abortion rights and same-sex marriage. But by the 1980s many liberals began to become skeptical about the ability of the judiciary to advance its agenda, and with today’s Roberts Court the bloom is fully off the rose. And Court-packing has become a fashionable idea because the Roberts Court is really regarded as the Trump Court. The authors describe “our current situation, where Congress is severely diminished and a president who is propped up by the Court reigns like a king.”

　　Brown, of course, is at the center of any account of judicial supremacy. Though controversial when it came down in 1954, it is today all but universally regarded as the Court’s finest hour. It gave the Court a store of moral capital upon which it drew for decades, emboldening it to take on social problems the way that it had taken on segregation. In Cooper v. Aaron, a follow-up case to Brown, the Court went so far as to say that its interpretation of the Constitution was the Constitution, the “supreme law of the land.” And when public opinion did not follow the Court’s lead—as in abortion, busing, or the death penalty—liberals could still point to Brown as justification for the attempt. As Justice Stephen Reinhardt, the leading liberal activist on the Ninth Circuit Court of Appeals, put it in a 1992 speech, “We must never forget that it was the Court, not Congress or the President, that put an end to official segregation. … It was the Court, not any other branch of government that for the first time gave meaning to the phrase ‘with liberty and justice for all.’”

　　Bowie and Renan call for “democratic constitutionalism.” Its goal is to eliminate any obstacles to majority rule.

　　Brown hoodwinked liberals, Bowie and Renan argue. After 1954, “liberals abandoned more than a century of struggle against judicial supremacy—and embraced the idea instead.” But the story is not as simple as this. The Court was not uniformly hostile to progressive reform in the period from the 1890s to the New Deal. The authors resurrect early twentieth-century claims that “this entire era in the Court’s history would come to be named for the 1905 case of Lochner.” Lochner struck down a New York state maximum-hour law for bakers. But historians, political scientists, and law professors have for decades recognized that Lochner was not a typical case. Notre Dame Law Professor Barry Cushman put it best, quipping that calling this period the Lochner era “is kind of like calling the 1980s ‘the Al Franken decade.’” 

　　In most cases, the Court upheld exercises of the state “police power” that really were pretexts for oppressive “class legislation.” Plessy v. Ferguson, which upheld state segregation laws putatively meant to prevent racial friction and riots, is a better example. (Yet somehow the authors see Plessy as a case of “judicial activism.”) Nor was the Court supreme in the post-Brown way. Congress was able to counter decisions that did block progressive initiatives—as in cases involving the income tax, employer liability for railroad accidents, and the labor injunction. Bowie and Renan also do not consider how often and effectually the states defied the Marshall Court’s vertical review decisions (Staten Island is still part of New York, for example). And they overlook the obvious fact that the antebellum Court was deferential to Congress because there was little to be deferential to when Congress was controlled by Jeffersonians and Jacksonians and rarely exercised national legislative power.

　　More importantly, progressives were not united in opposition to judicial power. Liberal embrace of judicial supremacy did not emerge overnight after Brown. The authors miss a long-running debate among progressives over how to deal with hostile judges. Some, the more old-fashioned Jeffersonians coming out of the Populist movement, saw the problem as judicial power per se. They made the last sustained argument that disputed the legitimacy of judicial review in toto. They called for the abolition of courts, impeaching judges, the use of the Article III exceptions clause to limit federal court jurisdiction, or the “recall” of state judicial decisions. Bowie and Renan sound most like this cohort, who wrote dozens of books and articles along these lines in the early progressive era. It is notable that they frequently cite Louis Boudin, the Marxist author of Government by Judiciary in 1932. 

　　In the long run though, progressive strategists saw the problem as personnel, not power. The real problem was that the wrong people wielded judicial power—judges who had not been educated in progressive principles. Under the influence of Oliver Wendell Holmes Jr., Roscoe Pound, Charles Hamilton Houston, Louis D. Brandeis, and Felix Frankfurter, the modern law school became the incubator of progressive jurisprudence. Harvard Law and others would produce the Supreme Court clerks and law professors who would eventually repopulate the bench. It took decades, but the Federalist Society, starting in the 1980s, mimicked what the progressives had done earlier in the century.

　　When FDR proposed to pack the Court in 1937, he was simply trying to accelerate this process. And, though his court-packing plan failed, he was able to pack the Court the old-fashioned way, via deaths and retirements, so that by the end of his administration, seven of the nine justices were solid New Dealers. Bowie and Renan largely miss this story; they jump from Taft to Warren. The 1940s “Roosevelt Court” was something of a rehearsal for the Warren Court. Modern legal liberalism had its seed planted in the famous fourth footnote of US v. Carolene Products (1938): business and majority groups could fend for themselves, while the Court would save its review power for non-economic rights and the rights of “discrete and insular minorities.” Though some of the liberals (Felix Frankfurter and Robert Jackson especially) had qualms about using judicial power for progressive ends, activists like Hugo Black, William O. Douglas, and Frank Murphy did not, and asserted it for labor unions and religious minorities. There was a hiatus after World War Two and with Harry Truman’s more restrained appointments. Earl Warren revived it with Brown, but even then it did not reach flood tide until the 1960s.

　　The authors proffer an interpretation of Brown that can be generously described as intriguing, or critically as off-the-wall. The NAACP suggested that the 1870–71 Enforcement or Klan Acts gave the Court power to end state school-segregation laws. Just as the Court set aside the originalist case against segregation, it made nothing of the Klan Act option. But the authors repeatedly claim that Brown was a Klan Act enforcement case. Liberals, they claim, mistakenly saw Brown as a case of judicial supremacy, rather than one where the Court dutifully and deferentially enforced an act of Congress. Bowie and Renan then double down on this interpretation by claiming that the Roe Court was enforcing the Klan Act. “In a tragedy of perception, Brown, Roe, and other exercises of vertical review quickly became conflated with judicial supremacy. Even when the decisions enforced acts of Congress, the Court often failed to mention the fact.” By similar reasoning, one can say that the Civil Rights Act of 1964, which outlawed segregation under Congress’s power to regulate interstate commerce, was really a Klan Act Trojan Horse.

　　Ultimately, Bowie and Renan call for “democratic constitutionalism.” They claim that it is different from the “popular constitutionalism” of Larry Kramer and Mark Tushnet, but it is hard to see any distinction. Its goal is to eliminate any obstacles to majority rule. Many of their progressive forebears were quite explicit that the Constitution itself, not its interpretation, was the problem obstructing democratic socialism (Woodrow Wilson, for example). Bowie and Renan are somewhat cagey on this point. They certainly want to go further, or avoid, personnel-centric Court-packing. They suggest several ways by which Congress can limit the Court’s power. But they also caution that a supremacist Court might hold these acts (and, it might be added, Court-packing itself) unconstitutional.

　　This is a rhetorically effective but fundamentally wrong-headed book. Its treatment of particular cases is often superficial, and it contains its share of factual errors. As I have argued, judicial supremacy is a problem, but there are less drastic ways of dealing with it—the authors give short shrift, for example, to “departmentalism.” If Mark Tushnet is correct that democracy and constitutionalism are ultimately irreconcilable, these authors will take democracy. If you care about minority rights, beware.