Delegitimize the Court
The Supreme Court’s approval rating is at record lows. A Gallup poll this summer showed that only 40 percent of Americans approve of the job the court is doing. Forty percent is low, but it should be even lower.
This is the eighth and final episode of Contempt of Court, our podcast series about reforming the Supreme Court. On this episode, we’re going to talk about the court’s only true form of power: legitimacy.
The Supreme Court rules over the country based on our consent to be governed by it. It rules over Congress because Congress consents to follow the court’s orders. It rules over the president because the president consents to enforce the court’s orders.
That consent is directly tied to the view, held both by the people and the actors in government with real power, that the random thought bubbles emanating from the asses of nine unelected law clerics are legitimate. It doesn’t have to be this way. Arguably, it shouldn’t be this way.
To discuss potential paths toward delegitimizing the court, my first guest on this episode is Harvard Law School professor, Nikolas Bowie. He makes a compelling case that the people, through their representatives, should be the ones in charge, not the Supreme Court.
Afterward, Rhiannon Hamam, host of the fantastic Supreme Court podcast 5-4, has some thoughts on what’s happening on the ground, as people try to take back power from the court through direct action.
If you’ve listened to this whole series, first of all, thank you. But more importantly, I have bad news for you: you’re like me now. You can never again hear about a Supreme Court ruling and say: “but there’s nothing we can do.” You can never again nod politely when your elected leaders pretend that they are powerless to stop the extremism of the Supreme Court. You can never again comfort yourself with the false belief that the system is working as intended, or the hope that things will naturally work themselves out.
Now you know that the court can be reformed. It can be changed and it can be stopped. And you know that the people who will not reform it or change it or stop it hold those positions because they like—or are willing to live with—the outcomes this Court is producing.
In the words of Yoda: “Pass on what you have learned. Save us, it can.“
Elie Mystal:
The Supreme Court’s approval rating is at record lows. A Gallup poll this summer showed that only 40 percent of Americans approve of the job the court is doing. For context, the court’s approval rating has averaged more than 50 percent since Gallup began tracking it in 2000.
Forty percent is low, but it should be even lower. It needs to be lower, much lower, if we’re ever going to do anything about the court.
WELCOME to Contempt of Court, a podcast from the Nation, sponsored by The New Press. I’m Elie Mystal, the Justice Correspondent for the Nation. This is the eighth and final episode of our series about reforming the Supreme Court—and today we’re going to talk about the court’s only true form of power: legitimacy.
I’m a parent. I have two little boys, so I think about my own legitimacy as an authority figure in their lives quite a lot. My kids are about to be 11 and 8, respectively. They’re still too young to know the horrible truth: there’s nothing I can actually do to them. I’m not going to hit them or starve them or lock them in their room until they learn to grow their hair long enough that a savior can climb through their window. They listen to me and my wife—to the extent they listen to us—because they think they’re supposed to.
Fools! When I punish them for transgressions by, say, taking away their Nintendo… I don’t even have the time or energy to move the actual machine. I do absolutely nothing to physically prevent them from playing. There are any number of ways they could still play without me knowing, and even if I found out, then what? I’m not going to smash the Nintendo like a barbarian. My response to them flouting the rules would be as ineffectual as Susan Collins’s political career: I’d be very “disappointed” and then go back to doing what I normally do: hoping next time it works out.
What I know that my kids don’t yet know is that I rule over them based on their consent to be governed. The minute they revoke that consent, my near dictatorial authority over them is transformed into the plaintive nagging of a deranged old man. Now, I’m a god. Ten years from now, I’m a suggestions box.
You can see where I’m going with this. Just like me with my kids, the Supreme Court rules over the country based on our consent to be governed by it. It rules over Congress because Congress consents to follow the court’s orders. It rules over the president because the president consents to enforce the court’s orders, with the point of a gun brandished by armed agents of the state, if necessary.
That consent is directly tied to the view, held both by the people and the actors in government with real power, that the random thought bubbles emanating from the asses of nine unelected law clerics are legitimate. Most people would ignore nine old people sitting on a park bench telling them how loud to play their music, much less telling them what they’re allowed to do with their own bodies. But nine old people sitting on a Supreme Court bench get to peer all the way into other people’s uteruses, because we think their pontifications are legit and should be upheld by men with guns.
It doesn’t have to be this way. Arguably, it shouldn’t be this way. My first guest today is Harvard Law School professor and scholar Nikolas Bowie. He makes a compelling case that the people, through their representatives, should be the ones in charge, not the Supreme Court.
Elie Mystal:
Professor Bowie, thank you so much for joining me today.
Nikolas Bowie:
Thank you for having me.
Elie Mystal:
I want to jump right in to the question of the Supreme Court’s power. Certainly, in my field and my profession, I spend most of my time trying to explain to people how this court, these nine unelected people, have so much influence over our daily lives, over the rights and responsibilities that we have as citizens, over how our elections work, over what happens when we go to the doctor and ask for medical care. How is the Supreme Court so powerful? How did we get here? And how do we ever get away from it?
Nikolas Bowie:
I think one way of getting at the question is thinking about when has the Supreme Court disagreed with Congress about the constitutionality of one of its laws? And so the way in which a lot of law professors have answered that question is by looking at Marbury v. Madison in 1803, and that case is often cited as the origin of the Supreme Court’s power of judicial review. And the court said, it’s emphatically the duty of the judicial department to say what the law is. But one funny thing, there are a few funny things about that as an origin story. I think the most interesting thing is the court wasn’t actually disagreeing with Congress about anything. Like the case involved a federal law that someone invoked and asked the court to enforce it. And the court basically was like, this law does not apply in this context, and we don’t think it can because that would be unconstitutional.
Nikolas Bowie:
But so the first time the court actually took a law that Congress passed, and said, we just think that law is not constitutional, and we just disagree with Congress — is Dred Scott v. Sanford in 1857, in which the Court said the Congress doesn’t have the power to abolish slavery in federal territory, because it violates the property rights of slave owners. And when the Court announced that, this is the first time the Court disagrees with Congress about the constitutionality of a law. You know, most people when they read it were like, what? Really, you just said that? Like, you know, the entire platform of the Republican Party, which is calling for the non-extension of slavery is unconstitutional? That we can’t decide this important question for ourselves? And so the Republican Party responded to that case by basically just running against the Court, like, where did this power come from? It certainly has never been used before. We don’t think it should exist. We think that, you know, the American people can decide this.
Nikolas Bowie:
And when Abraham Lincoln was inaugurated President in 1861, you know, he’s like, we can have a system in which the Supreme Court decides all these really important questions. But the candid citizen must confess that we would cease to be a government of the people if we handed all of that power to this eminent tribunal. And so it wasn’t really until after the Civil War, after Reconstruction and the rise of the labor movement, when the American people as a whole started to accept this idea that when it comes to the most important constitutional questions, the Supreme Court should be able to have the last word. And so it was very much a part of a cultural counter-revolution to movements on the left to, you know, create multiracial democracy, to create safe and healthy working conditions, an empowered labor movement. And the court basically grabbed on to striking down these federal laws, and a lot of social conservatives signed on thinking, I like what they’re doing. Let’s keep it up.
Elie Mystal:
I would argue as well that one of the big expansions of the Supreme Court’s power in this country happened in direct response to the Reconstruction amendments. So you’re kind of talking about the first time the Court kind of openly — I don’t want to say defied Congress — openly disagreed with Congress’s interpretation of the Constitution. But when you look at some of their Reconstruction-era cases, the Slaughter-House cases for instance, and then certainly leading up to Plessy v. Ferguson, what we have is a Court that is not just disagreeing with the president or Congress, it’s disagreeing with the amendments foisted onto the Constitution arguably over their objection to table those amendments, to table those Reconstruction amendments, to weaken them, to lessen them, to make them less robust than perhaps even the writers of those amendments thought they should be. And the country just went along with that, just was like, oh, yes, of course, the 15th Amendment shouldn’t actually apply to anybody. Oh, yes, of course, the 13th Amendment only applies to the freed slaves. That wasn’t what was in the text of those amendments. That’s something that the Supreme Court kind of did on its own.
Nikolas Bowie:
Yeah, so I think it’s important to be precise about what is wrong with the Court, like what is the real source of the problem? And for me and my colleague, Daphna Renan, the source of the problem is the Supreme Court’s power to invalidate federal law, to say there is no institution in the country capable of interpreting the Constitution better than us. And that even if Congress writes the 14th Amendment, gets it ratified, and then starts enacting laws to enforce the 14th Amendment, we are better than them at interpreting that amendment and deciding what it means. And so, you know, when Congress proposed the 14th Amendment, it did so in a context where all of these southern states were actively resisting it, like Congress had to deny representation to — like representatives from southern states — until their state adopted multiracial constitutions, and then those new state legislatures ratified the 14th amendment.
Nikolas Bowie:
So Congress knew states were going to be super hostile to enforcing all of these new Reconstruction amendments. And so what they attempted to do is like try to enforce these new amendments any way they could. They created new agencies, like the Freedmen’s Bureau and said, go enforce this. They told the military, like if you see the Klan, stop them, arrest them. And they told federal courts, you know, enforce the Constitution against hostile state actors. If you see a state actor violating the Constitution, enjoin them. And the problem began not just because the court had like bad opinions about what these amendments meant, which was certainly an issue. But that even when Congress went ahead and said, and here’s what we think the 14th Amendment means, so in telling you to enforce it, here’s some guidance. The court responded to that by saying, I don’t know, that seems really aggressive, Congress, do you really think the 14th Amendment empowers you to pass an anti-discrimination law? Do you really think the 15th Amendment empowers you to pass a voting rights law that affects private citizens? We don’t think so. And so Congress passed all these laws in the Reconstruction era, they passed the Civil Rights Act, they passed the Voting Rights Act, they passed laws to prevent lynching. And the Supreme Court struck those down.
Nikolas Bowie:
And so it was only because the Court disagreed with Congress about its own power that Plessy v. Ferguson or cases like it were even an issue. Because when Congress was passing civil rights laws, Louisiana couldn’t adopt a segregation ordinance, because that would have been illegal, you know, it would’ve been illegal to segregate. But it was only after the Court struck that down that states like Louisiana and Virginia and the rest of the Jim Crow South said, oh, it looks like we have this ally in the Court, we can get away with a lot. And then when people invoked these federal laws saying, hey, Court, aren’t you supposed to stop these constitutional violations? The Court’s response was, oh, you know, that’s a lot of work. I’m not really sure that we have the power of both sides. You know, slavery ended, you know, 20 years ago, surely black people can stand up for themselves. And so it’s the real — it’s the disagreement with Congress that like begins the rest of the issue and remains the root of the problem today.
Elie Mystal:
Okay, but to push back: Doesn’t somebody have to disagree with Congress? Because while, yes, there are times in history, there are times that we can all point to, where Congress has been on the right side of history. There are also times in history that we can all point to that Congress has been on the wrong side of history. So like, if the Supreme Court is not allowed to check, or is not supposed to, or has too much power to check federal laws enacted by Congress, doesn’t somebody still need to have that power? Or are we just gonna let Congress kind of do what Congress does?
Nikolas Bowie:
No, Congress is awful. I mean, I certainly am not going to argue that like, let’s trust Congress with everything. But there is a check. In a democracy, the check is the people, it’s voters, it’s you and me. And when we can’t vote, it’s us in the streets demanding the ability to vote. So, one story that predates Marbury v. Madison involves this campaign against the Alien and Sedition Acts in the late 18th century. So Congress passed these laws, one of which was the first deportation law, the other made it a crime to criticize the President under some circumstances. And federal courts upheld these laws. They’re like these laws look good to us. We’re Federalists, they’re Federalists, we’re all Federalists, looks like good federal legislation.
Nikolas Bowie:
And so Jefferson, Thomas Jefferson and James Madison, were like, we think these laws are unconstitutional. The federal courts are not doing anything about it. We think maybe states should get in the way, but at the very least, we’re going to campaign for the White House on a platform of, the Federalists are violating the Constitution. And they won, they won in 1800. And so once they came into power, you know, the laws that they objected to either expired and they didn’t renew them or they repealed them. And then they went ahead, and they went after the Federalists on the courts. So they abolished, you know, like 16 courts that the Federalists had set up, the entire Courts of Appeals. And in Congress, Federalist members of Congress were like, hey, you can’t get rid of these courts, because who’s going to check Congress if the courts can’t? You know, surely there’s a role here for courts to stop Congress from doing horrible things. And the Jeffersonians in Congress were like, yes, we just saw Congress do horrible things. The check was us. And surely you cannot believe in a system of checks and balances in which courts can check the legislature, but the legislature cannot check the courts. And so they went ahead, and they pushed out all of these Federalist judges. And Marbury v. Madison basically took all the Federalist arguments from Congress and put it into a judicial opinion, saying, like, we see what’s happening here, and we don’t really like it, but there doesn’t seem to be much we can do about it.
Nikolas Bowie:
And that’s the story of Marbury, it’s a story of the court looking at voters checking Congress, and thinking, surely courts should be playing this role, not you guys. You know, Congress does pass horrible, horrible legislation. But if you look at American history, the typical horrible federal law is repealed not by the Supreme Court, but by voters. So when Congress dispossesses Native Americans, the Court’s like, awesome. When Congress interns Japanese Americans, the Court said, you know, it’s really offensive for you to call this racism. To us, this is just winning a war. When Congress, you know, has gone after communists in the federal government, like labeling anybody they didn’t like a “red” when Congress has passed the Chinese Exclusion Act — like take the worst federal laws you can think of, the Court has typically said, that’s fine with us. And so to rely on the court, as like this necessary check, I think, does a disservice to how there’s a history and a memory of how these horrible laws have been repealed. They’ve been repealed by really angry people, not by courts sitting there thinking, yeah, we need to make adjustments.
Elie Mystal:
We’ve been talking about federal law. Does your answer change a little bit when we start talking about state law? Like does your answer change when the court is not checking an act of Congress, but it’s checking Mississippi? And I bring this up because I think when a lot of people think of the Court as a force for good, they think of the Warren Court, they think of the civil rights era. And it’s important to me, I think, to emphasize that when you look at what the Warren Court is doing, a lot of times the Warren Courts are invalidating or massaging state laws, not federal laws. So does your answer kind of change in terms of how much power the Supreme Court should have as we start looking at state laws that are putatively violative of the federal constitution, or our system of civil rights?
Nikolas Bowie:
Yeah, so I think it’s really important to distinguish judicial review of federal law, which I don’t like, and judicial review of state law, which I think can be hit or miss. And one way of thinking about it is to go back into the minds of the Reconstruction Congress. So Congress has just pushed through the 14th Amendment, passing all of these civil rights and voting rights laws, and they see like Mississippi is not going to uphold these laws. So Congress is thinking like, how are we going to stop Mississippi and all these other states from just creatively evading these laws? So again, they like sent agencies after them, they sent the military after them, and they sent federal courts after these laws, and they said, go forth, federal courts, and stop these bad state actors. And to me, you know, that’s totally appropriate. A national legislature should be able to enforce national legislation, to have a more democratic body than the Supreme Court decide what our national commitment should be makes a ton of sense. And to the extent that, you know, a single state wants to resist that, living in a country, like one consequence of being in a federal republic is having some sense of federal guidance about how the system should operate, whether it’s coming from courts or from the national legislature.
Nikolas Bowie:
And so the law that Congress passed in 1871, it was called the Ku Klux Klan Act, or the Civil Rights Act of 1871, which said federal courts, go and enforce the Constitution. That is the law that Thurgood Marshall and other NAACP litigants invoked in the lead-up to Brown, when they said Kansas and all these other states are violating the Constitution, federal courts, please enforce what Congress has asked you to do. And in Roe v. Wade, and then Obergefell v. Hodges, like all of these cases involve the same 1871 statute. And the significance is not that this like same statute is behind all of these landmark decisions, but that what it represents is the national legislature telling national courts, enforce national law against all these rogue actors. And so sometimes the court does that well, and sometimes the court does it horribly. But the important thing for us is that when the court does a bad thing, like the American people should be able to respond to that without having to go through the process of amending the Constitution. Like the US Constitution is the most difficult constitution in the world to amend of any major democracy, and to have a system in which the Supreme Court’s interpretation of the Constitution can only be reversed by the Supreme Court, or super majorities of both houses of Congress and super majorities of three quarters of the states — like that’s a crazy system, relative to, you know, vote members of Congress out of office, which, you know, happens at least more routinely than the 27 amendments we’ve seen.
Elie Mystal:
Absolutely. I mean, so I think, having explained kind of how we got here, what do we do about it? Because while it’s great to say, oh, we should empower Congress more, I imagine I can play the thought experiment of, you know, going into John Roberts’s house and saying, John Roberts, you should use less power, and him escorting me to the door. Certainly, Neil Gorsuch barely thinks the federal government should be allowed to exist, certainly doesn’t think that any executive agencies, like the ones you were meant mentioning that Congress deployed after Reconstruction — certainly Neil Gorsuch doesn’t think that any of those agencies are allowed to exist. So how do we go about depowering the Court when the Court itself is the institution that says we have all of this power?
Nikolas Bowie:
Yeah, so you can think of a few obstacles in the way of Congress or the American people disempowering the court. Some are legal, and some are cultural. So to the extent that you focus on the legal obstacles, but you don’t address the cultural obstacle, so you’re like the Supreme Court decides what the Constitution means. So if Congress tries to stop the Court, the Court will just say it’s unconstitutional. At that point you’ve lost, because that’s true. You know, John Roberts is not going to agree to like cede the enormous amount of power he has, you know, it would be a revolutionary act.
Elie Mystal:
He’s not Cincinnatus.
Nikolas Bowie:
Right, generosity. But the key thing is it’s cultural. So going back to Dred Scott, you know, Congress’s — the American people’s response to Dred Scott, some of them were like, awesome, we’re gonna form a country that’s like based on this idea. But for the people who remain part of the United States, the response to Dred Scott was not, rats, I guess we have to wait for Chief Justice Taney to die so we can replace him with a better judge. It wasn’t even, let’s pack the court with better people. It was, we do not think the court should have this power. So we are going to ignore this decision. So in 1862, so five years after Dred Scott, in the middle of the Civil War, Congress passed a law that said slavery in the territories is abolished, no more slavery in the territories. The holding of Dred Scott, one of the holdings of Dred Scott was Congress cannot regulate slavery in the territories. Congress just said, no, like we just disagree with you. And we’re gonna enforce this ourselves using our own people, rather than, you know, comply with this decision that we regard as deeply immoral and an inappropriate interpretation of the Constitution.
Nikolas Bowie:
When the Court started exercising this power more after Civil War and during Reconstruction, some members of Congress were like, hey, you know, everything the Court does is a consequence of federal law. So if the Court is trying to assert its supremacy over us, we should just take away its power to do that. So there were some bills to prohibit the court from issuing orders, absent the support of three quarters of the Supreme Court, on the theory that you need super majorities of Congress to overcome a presidential veto. So surely, a Supreme Court veto should not be even more powerful than that. Some members of Congress said, let’s control the membership of the court. Some members of Congress said, you know, let’s control the funding that the Court receives, let’s change how the court operates. Some members said, let’s take away its power to issue certain types of orders. So when it comes to what they call political questions, the court would not have jurisdiction to decide them. And all of these options have been employed in the subsequent century and a half. They remain available today. And so it’s really just a matter of asking, what do you think Congress would need to do before Chief Justice Roberts would say, okay, I give up? And the answer is, you know, it’s actually not a legal question at all, really, it’s just a question of like, what do you think you could politically do to reassert democracy?
Elie Mystal:
I want to bring up two other factors that I think complicate this idea of trying to delegitimize, de-empower, rightsize, if you will, the power of the Supreme Court. One is the complication that Congress, the people that you’re saying should have this power or should take this power, a lot of times, I feel, don’t want the power.
Elie Mystal:
They prefer being able to kind of say like, oh, well, I couldn’t do anything, because the Supreme Court people, anyway, vote for me on Saturday. Like, this is a problem that I think absolutely crosses party lines, where it is convenient at various points, especially for whatever party is in power, to say that their hands are tied or befuddled by the Supreme Court.
Nikolas Bowie:
That’s true.
Nikolas Bowie:
So here’s the thing, I would love to live in a country in which there were a Democratic legislature that were, you know, listening to voters, treating them as political equals, responding to concerns, legislating on behalf of the American people, as all of us equally demand and need. That helps us all live fulfilling lives. I want that legislature. And so the question for me is, how do we get from here, where we are now, to there? And the answer is not going to be relying on the Supreme Court to interpret its understanding of the Constitution, in order to somehow transform our politics to get there. The answer is going to rely on a lot of political activism demanding a more democratic legislature. One problem is that when people have successfully done that, the Supreme Court has said, we think this is unconstitutional, you know, so the Voting Rights Act. One reason why Congress is so dysfunctional right now is because past Congresses have passed campaign finance laws and voting rights laws, laws to protect the political integrity of the process, laws that prohibit corruption. And every time, the Court says, we’re either going to extremely narrowly interpret this law, or we’re just gonna call it unconstitutional. So even after 50 years of unanimous Congressess upholding the Voting Rights Act and reaffirming it, the Court’s like, I don’t know, the 15th Amendment says you can pass appropriate legislation. We don’t think this is appropriate. In conclusion, you can’t enforce it.
Nikolas Bowie:
And so I think part of the reason why it’s so easy to look at Congress now and say, yeah, that institution is horrible, we shouldn’t trust it. It’s like, well, yeah, you’re looking at someone that’s been held captive by this other institution. It’s like, trust us, we know the answer. Don’t trust that guy. By the way, we’re also stabbing it with every resource we have at our disposal. So I think part of the solution here is not only demanding that Congress actually either reauthorize or resume enforcing legislation like the Voting Rights Act, but also doing so in a way that doesn’t rely on the Supreme Court’s own willingness to uphold it as the basis for the law. So you know, what that means in practice is like when Congress first passed the Voting Rights Act, they knew that like South Carolina is going to be super hostile. So let’s direct all legislation through courts in DC. And today, that’s going to look really different, because now the hostile institution is the Supreme Court itself. And so Congress has to write legislation that relies on different institutions to enforce it, when they know the Court is a hostile actor, at least until there’s a change in membership, or more justices added to the Court or something in between.
Nikolas Bowie:
If you look at other countries in which they’ve had these like grossly disproportionate parts of their legislature, like the House of Lords in England, you know, it took really creative legislation and raw political power to disempower the House of Lords. Like the House of Commons was like, we’re going to defund you and we’re going to do all sorts of horrible things to you, unless you take away your power. And it was at that moment when the House of Commons pushed through the Parliament Act, that the House of Lords said, maybe we should not stand in the way here before we lose everything else we have. And it’s like that kind of creative legislation is sort of what you need in order to respond to modern conditions. But you can easily imagine what would happen if Congress attempted to pass legislation tomorrow or, you know, in 2025, or whatever, that attempted, say, to disempower the Senate, or that attempted to create proportional representation or end gerrymandering or do whatever else we need. The Court would say, I don’t know if we think this is constitutional. And that, to me, is the problem. It’s like, we need to get rid have that kind of thinking, the kind of thinking of, we have no ability to interpret the Constitution for ourselves. Like we can’t interpret the Constitution as a document that requires equal representation and that requires treating people with dignity, because Brett Kavanaugh doesn’t think so. Like that is ceding a tremendous amount of authority to a lawyer. And as a lawyer, I don’t want that authority.
Elie Mystal:
There’s a possibility, like season two of Contempt of Court is going to be: Abolish the Senate. Like that’s gonna be a whole different podcast series that we run about how that’s an institution that just needs to die. I would just add that I think that part of the problem here comes from the people who are part of the Supreme Court Reporting bar, I think that far too many of the lawyers and other ostensibly smart people that cover the Supreme Court really like to use the jargon, really like to make these cases seem like they’re intensely complicated and extremely dense. And as you say, it need not be that complicated. I’m not gonna say that it’s easy, right. But like, the people who understand how the law works the least might be in Congress, like that’s one of the problems that you have sometimes. And that leads to –potentially judicially supreme opinions — is that Congress regularly writes bad, vague, unenforceable laws, again, kind of almost kicking it to the Supreme Court to sort it out later, right. I’m particularly thinking just at the moment, because it happened recently, while we’re recording this, of the Clean Air and the Clean Water Act, right, like these are laws that the Supreme Court is going out of its way to neuter. But part of the reason why the court is able to neuter these laws is that the laws themselves are so vague, right. The Clean Water Act, that Congress shall have authority over the navigable waters of the United States — what the hell is that? So like, how do you deal with the kind of legal illiteracy of Congress, even as you are trying to empower Congress to have more authority to make some of these constitutional decisions?
Nikolas Bowie:
Yeah, so your question makes me think of when Alexis de Tocqueville came to the United States in the 1830s and 40s. And he was looking around, and one of his observations was, wow, the American people just really like to debate stuff. Like everyone seems to care a lot about the political issues that affect them. And they’re like really intense about it. And then the second observation was, wow, lawyers really like to treat themselves as part of a priesthood that can only be understood by themselves. And they also really care about these political issues. So the net effect is these political issues always wind up in front of lawyers who are like, we will take this, thank you for bringing up this issue. And we will come back to with our considered response. And so de Tocqueville looked at this and was like, this seems to us, to me, like an aristocracy, rather than the democracy that I’ve been praising in volume one of my book. And I think that, you know, what you’re saying about the media coverage of the Court today is reminiscent of that, it’s this idea that there are some issues that should be unintelligible, to you and me, or to anyone else who has not been to law school. And even though they’re the issues that, like, affect everything we are allowed to do, from who we we’re allowed to sleep with, to where we we’re allowed to live, and how I get treated by others in the street, like, things that could not be more personal, somehow, are beyond my intelligence. And I don’t think that’s true.
Nikolas Bowie:
But I also don’t think that it’s true to characterize Congress as a bunch of idiots either, who don’t know what sorts of laws they’re writing. It’s really hard to predict the future. It’s really hard for people who are following the court to predict what they’re going to do. It’s really hard as a legislator to predict, how are others going to react to the words I’m putting on paper, especially if you’re running a country, and you’re passing laws that may last for decades. It’s hard, like, you know, if I were to ask you, like, you’re now the swing vote in the Senate, like, write a law that effectively responds to the climate crisis. Like, good luck. You’ll try, you’ll be like, well, people shouldn’t pollute, and people will go, what does pollute mean? You know, like, you’re trying, but that’s different from saying these are unintelligible or that the laws themselves are vague. What it reflects is law is a matter of, like, continuous adaptation. It’s like we try one thing, we see if it works. We try again, we see if that works. Law is not this like static thing. And the same is true, frankly, of the Constitution. It’s true for all law, like you can write something at one moment thinking you’re solving one problem, only to discover ten years later that there is a new problem related to the first one that you didn’t address. You didn’t think of.
Elie Mystal:
Digital Millennium Copyright Act?
Nikolas Bowie:
Or they’re problems that you purposely put off, because he didn’t have the answer for it at the time, you didn’t have the consensus for it at the time. But that’s what politics is. And so one of the reasons why I feel so passionately about the Supreme Court’s power is because I think its power has the effect of disempowering all of us.
Elie Mystal:
Professor Nikolas Bowie, thank you so much for joining me. Fascinating conversation. And it makes sense. Sometimes it feels like we’re closer than even I think, to really having, as you put it, that cultural shift that is necessary before real reform can truly take root. So thank you so much for joining.
Nikolas Bowie:
Thank you.
***
Elie Mystal:
Bowie’s plan, unfortunately, requires our elected leaders to grow a spine and stand up to the Supreme Court. But, as he mentioned, that is unlikely to happen without massive public support for the elected branches of government.
That’s why I say that the Supreme Court’s approval rating actually needs to be a lot lower. The people need to agree that the Court is illegitimate before Congress and the President are likely to rediscover their own constitutional powers.
My next guest, Rhiannon Hamam, host of the fantastic Supreme Court podcast 5-4, has some thoughts on what’s happening on the ground, as people try to take back power from the Court through direct action.
Elie Mystal:
Rhiannon, thanks so much for joining me.
Rhiannon Hamam:
Thank you so much. I’m so happy to be here, really honored to be invited. And yeah, thanks for the shout out to the podcast 5-4. We just talk about how much the Supreme Court sucks, one case at a time.
Elie Mystal:
As a person who, you know, has this entire kind of, again, critically-acclaimed, wonderful show, talking about the Supreme Court at a kind of granular level — what’s your feeling on whether or not this delegitimization crisis that people who, like you and I, who watch the Court kind of every day, feel should be obvious? Do you think that people who are not watching the Court every day, people who are just kind of tuning in maybe once a week, maybe once a month, do you think that it’s starting to seep through the ether that the Supreme Court is out of control and a huge problem?
Rhiannon Hamam:
I think that it’s starting to. I think that’s right. You know, we have accepted for so long a structure of judicial supremacy, right, that the Supreme Court really created for itself, and the conservative legal movement enshrined over the last 50 years. You know, judicial supremacy is the vehicle, the institutional structure through which this conservative legal movement has been able to achieve really quite conservative policy goals without a political or electoral majority, right. So when we start to shift and think about how conservative the policy goals they have gained through the Supreme Court over just the last couple of years, I think people are starting to get a sense something is not right up there, right. And, you know, I think that you can take a step back and see, even if you’re not a lawyer, even if you’re not some expert on the conservative jurisprudential doctrines, right, a regular person, we’re talking to regular people on our podcast, you get a sense that something is wrong up there. There are six hyper-conservative maniacs, frankly, on the Supreme Court, three of them handpicked by a president who did not win the popular vote, and they are enacting policy for the Republican Party that is oftentimes more conservative than what the Republican Party themselves are asking for. And so I think the normal person really, you know, it might not be that they have a specific understanding of what’s going on there. But I think people have a sense, like, something is not right with this institution. Something is not right when six unelected, democratically completely unaccountable people really rule over our political system, rule outside and above the constitutional structure of the other branches of government.
Elie Mystal:
What do you say to the criticisms that this is all partisan? That the reason why people like you and I are complaining about the legitimacy of the Court is because we don’t like its current decisions? You’re all for judicial supremacy in the past. Now we’re against it because we don’t like the decisions. Now, I personally have an answer to that, which is, yeah, I’ve liked judicial supremacy when they’re stopping racists from being jackasses. And I don’t like judicial supremacy when they’re anointing themselves the kings and queens of other people’s uteruses. And I don’t feel like that is a particularly problematic sense. So go fuck yourself. But other people say that this is kind of just a partisan issue and not a structural issue. What do you say? What do you think about that?
Rhiannon Hamam:
I take a step back maybe even further. And I think the thing we have to recognize is that just because the Supreme Court as an institution has laundered what they do with the rhetoric that we all have to be deferential to this institution, that they are apolitical outside of the political system, I think the assumption we should be working from is that adjudicating the law, doing what the Supreme Court does, taking cases and ruling on them is a political process. They are doing politics, right. So when the Court is packed in the Republican Party’s method of court packing, which they have already done, with partisan hacks, we all have to recognize, yeah, that this is part of partisan politics, and that there are political solutions to the political methods that they’re using right now. Just because they say they’re not political does not mean that that is the case, right. So I think what it is, is, yeah, it is a little bit partisan. I’m angry about what the Supreme Court is doing, because I disagree with conservative ideology and conservative policy goals, right. And I think that the Republican Party has packed a court to their liking, handpicked these six maniacs so that they can achieve their partisan goals in this supposedly apolitical branch of government institution. So yeah, I’m okay with the criticism that my criticism is partisan, right. It definitely is. And I think we would all do well to recognize and be more upfront about the fact that that’s because what the Supreme Court does is partisan. And because this institution has created for itself a deference from the other branches of government, has enacted judicial supremacy as the structure through which it operates, that means that structurally, it can do partisan work.
Elie Mystal:
What does it mean, on the ground, to delegitimize the Court, to strip the Court of its supremist function, right? Because a lot — let’s put it like this. A lot of this podcast, a lot of my work is focused on court reform, and specifically court expansion, right? And that’s great. That’s fun. I think that that work, but it fundamentally, kind of presupposes the idea that these nine, or in my case, 29 or 30, however many you want, justices do have some kind of overarching, controlling role over society. I’m trying to kind of change the kinds of people who get to make those decisions. But that’s not really delegitimizing the court, it’s rearranging the deck chairs so they stop stabbing me in the face on the way down. One of the reasons why I like your work is that, even as simple as like you don’t talk about these people in the kind of genuflecting tones that a lot of us have been trained to kind of talk about the justices. But beyond kind of rhetoric, what does delegitimization actually look like when it’s applied to this Court?
Rhiannon Hamam:
Yeah, I have two thoughts, and I think both of them come from my background and readings as a prison abolitionist, right. In prison abolition, when we’re talking about abolishing the prison industrial complex, we are talking first, you know, people ask, ell, how do you get rid of prisons, right? How do you delegitimize the Supreme Court? It’s a co-equal branch of government in the Constitution, right? What you’re thinking about, actually, in terms of, at least in the short term, is shrinking its power. You know, court expansion does not abolish the Supreme Court, right. But what it does is shrink individual justices’ power. So it’s not only about changing who is making the decisions on the court, which is extremely important. But it’s also about making sure John Roberts, Sam Alito, Clarence Thomas, Amy Coney Barrett, right, that they don’t have the outweighed, disproportionate, massive amount of power that they have over the institution right now. So that goes to shrinking power, right. Other structural reform proposals, things like jurisdiction stripping, right, that also shrinks the power of the Supreme Court, that is, towards a, what I would call, sort of an abolitionist goal. That is, towards a delegitimization process, structurally, of the Supreme Court as we have it now.
Rhiannon Hamam:
Now, another idea that I have that really comes from prison abolition as well, and I think speaks to your question about like, what does this look like on the ground? Okay, so for normal people in my community, right, teachers and doctors and bus drivers, right? How are they thinking about the Supreme Court? And how do we delegitimize the Supreme Court in their minds and in their lives? You know, something I’ve learned from prison abolition also is about the power of imagination. The system that we have does not have to be this way. We are capable of imagining a legal system that is truly about equality and justice for all. And we have the power to think about how we want that structure to look, right. So it’s about building people power, but I actually have a few examples of this happening already. One example is in the reproductive justice space. So Dobbs, of course, overturned Roe v. Wade last year, many states across the country soon banned abortion. But there are a few things that people are doing on the ground that basic — Can we curse on this podcast?
Elie Mystal:
Yes, we have the explicit tag, all ready to fucking go.
Rhiannon Hamam:
Okay, but there are a few things, a massive impact that community organizations are having right now that say, fuck Dobbs, fuck your Supreme Court, right? In state legislatures, five states, including Colorado and Massachusetts, I believe, have passed shield laws to protect health care providers in their states who provide any health care that is legally protected in that state, which includes prescribing and sending abortion pills to anyone in the United States, right. That’s an example of state lawmakers acting, saying, you know what, okay, Dobbs says what it says. We’re going to do what we can do that circumvents, that is around and outside the scope of that awful ruling. And then community support networks. I talked about people power, right. They are now providing free abortion bills to people living in states with abortion bans, you know, dozens of companies offer abortion pills now at low cost online, some less than $50, delivery is within a few days. That is because groups said, fuck the Supreme Court. We don’t care what they say. We’re going to support people making reproductive choices for themselves, their families, their communities, no matter what the law says. We operate outside of this, the Supreme Court does not speak for me, right. I think there’s another example in the case of student loan debt. There’s a great organization called the Debt Collective. I read a wonderful book published by them called Can’t Pay, Won’t Pay: The Case for Economic Disobedience and Debt Abolition. Their, yeah, you know, their stance, they have written the model executive order for President Biden. Their stance even after the student loan debt case where the Supreme Court said that —
Elie Mystal:
Stole $10,000 from everybody, yeah.
Rhiannon Hamam:
Stole $10,000 from everybody. That’s right. The Debt Collective says, President Biden could cancel all student loan debt today with an executive order. He could do that today. And then what, right? Shat’s the Supreme Court gonna do about that, right? I don’t accept your decision, Supreme Court. Thank you so much. We are operating outside of the scope of power, the scope of authority that you think you have. Labor organizing, I think, is another really good example of this people power delegitimizing the Supreme Court. The Supreme Court has played a massive role in weakening unions, you know, ever since the passage of the NLRA, right. But you get workers acting collectively, you know, I’m just thinking about the recent UPS workers threatening a strike, right? You get workers acting collectively, corporations do not have a choice. The people’s power is way too massive, right? Our economic power together, outside of the legal system, outside of the structure of judicial supremacy, is where the power lies. And is where, I think, we would do well to connect that we are delegitimizing the power of the Supreme Court when we are organizing in these ways.
Elie Mystal:
When I think of stripping the court of its power, I always come back to Federalist 78, where Alexander Hamilton writes, “The Supreme Court is going to be the least dangerous branch of government because it has neither the power of the purse nor the power of the sword.” And I always kind of come back to that why because Hamilton was wrong. Hamilton was completely freaking wrong. But why? Because on paper, he should be right. And I always come back to the idea that the reason why Hamilton was wrong is because the people with the power of the sword, the executive branch, the president, always seems — Teddy Roosevelt excepted — to want to enforce Supreme Court edicts that may or may not be constitutional on their face. And Congress, the people with the power of the purse, is always willing to fund whatever boondoggle the Supreme Court wants to send the country on next. And I wonder if there’s ever a point where those two branches of government will take the power back for themselves. So for instance, you brought up Dobbs. Obviously already, I’ve long said, I do not see why Biden isn’t performing abortions on military bases right now. What’s gonna — is Clarence Thomas gonna rush Fort Bragg? I don’t think so, right. So like you could just be doing the abortions right there in Texas right now. You know, just, with the power of the sword. Power of the purse — I had Hank Johnson on earlier in this series to talk about his bill to enforce the Supreme Court to adopt an ethics bill. It could also strip the funding of the Supreme Court until they adopted ethics reforms or any other structural change, right. The Constitution says there has to be a Supreme Court. It doesn’t say where. The Supreme Court can hold their hearings in the park for all the Constitution gives. They don’t need the fancy building and the robes and the clerk, right. So is there — do you, from where you sit, do you see any kind of will to actually start taking power back from the Supreme Court and putting it back into their own branches of government?
Rhiannon Hamam:
Yeah, this is a really good question. I think short answer is no. I’m incredibly disappointed by the Democratic Party for not taking this political moment when people are starting to understand what’s happening at the Supreme Court. These approval ratings are incredibly low right now in the public. And the Democratic Party isn’t taking that seriously, right. And certainly has not planned for this moment, even though a lot of people could see this coming, and hasn’t responded to this moment with any sort of moral force, purpose, any of that. So I think that goes back to, for me, what I was saying about the power of imagination, right? I think that conservative judicial supremacy has gotten us progressives, whoever, left-of-center Democrats, what have you — has gotten us incredibly limited in what we think is possible, right? If we always have in our minds, this looming dead end, that if, you know, some sort of package of progressive legislation is passed, that the Supreme Court is always going to be there to strike it down. Well, you have really a Congress, a Senate that’s not acting with any sort of imagination about what we could do, right.
Rhiannon Hamam:
One other point is that I think this lack of imagination, and this sort of, frankly, what I think is political cowardice, is sort of unique to the Democratic Party. Republicans do not care about judicial supremacy, right. Republicans and states across the country passed laws that were absolutely illegal under Roe v. Wade, over and over and over and over again, for decades, until Roe v. Wade was overturned, right. Alabama, the state of Alabama, just now, just this term, there was a Supreme Court ruling in Allen V. Milligan that Alabama had violated the Voting Rights Act, right, by only giving one of its seven districts to a Black voting majority, even though Black people in Alabama constitute almost one in three people in the total state population. The Supreme Court, this conservative Supreme Court, said, that violates the Voting Rights Act, Alabama, you need to redraw those congressional maps, right? What did Alabama say? Alabama said —
Elie Mystal:
Come out here and make me!
Rhiannon Hamam:
Kick rocks, John Roberts! Kick rocks, conservative Supreme Court. We’re not doing that. They did remake their congressional districts. They did not give two Black majority districts. It is still just one. So it really begs the question, like where are our ostensibly progressive politicians on this, right?
Elie Mystal:
I want to backup this point because I think people forget that white conservative Republicans have always thumbed their nose at Supreme Court rulings they don’t like. People, it is a myth, it is a fucking myth to think that Brown v. Board of Ed. ended segregation, right? That’s just not what ended segregation. What ended segregation was Bobby Kennedy sending boots on the ground, troops to Arkansas to integrate the schools. That’s what ended segregation in Arkansas, not some ruling on a piece of paper that Klansmen and white conservatives just ignored, and in fairness have continued to ignore at every point when the federal government is not willing to put boots on the ground and force them. And that has been the conservative policy since Reconstruction. Right, and back then the Conservatives were called Democrats. Now they call themselves Republicans, I don’t give a fuck what they call themselves in the morning. But if you look at the history of this country since Reconstruction, at the moment the white liberals stop putting their foots on the neck of their conservative white cousins, they revert back to any kind of racist bullcrap that the Supreme Court allegedly said was unconstitutional.
Rhiannon Hamam:
Yeah, that’s exactly right.
Elie Mystal:
So this point that Rhiannon’s making, it’s so important. Republicans always do this.
Rhiannon Hamam:
They always do this. You can look at when there is a Supreme Court decision, even from the conservative Supreme Court, right? Look at how Chief Justice John Roberts has been lambasted in conservative media over the past 15 years since he’s been on the court, being criticized, dragged through the mud that —
Elie Mystal:
They called him a rhino.
Rhiannon Hamam:
Yes, that he is not delivering on the conservative goals that Republicans put him on the Supreme Court to achieve, right.
Elie Mystal:
Again, like the Republicans, the Supreme Court justices used the complete Republican refusal to abide by Roe v. Wade as one of their reasons for overturning Roe v. Wade. Like that was actually in the decision they wrote about how just the conservative refusal to accept the decision meant that decision wasn’t actually precedent, it was always up for debate. Like, that’s their actual fucking logic.
Rhiannon Hamam:
Right, right, exactly. So I think it’s very telling when you pay attention to conservative media and what Republican politicians say about the Supreme Court, when the Supreme Court is delivering the rulings that they want, and when the Supreme Court is delivering the rulings that they don’t want. So we have this incredibly hyper-conservative Supreme Court right now. So Mitch McConnell writes an op-ed, right, a couple of weeks ago, saying criticism of the Supreme Court is uncalled for, the Supreme Court takes cases as they come. They are the umpires, right? They’re just calling the balls and strikes. The Supreme Court is not a partisan political institution. This is Mitch McConnell. Mitch McConnell, the man who held up the replacement of Antonin Scalia, right, so that a Republican could appoint a replacement. This is Mitch McConnell, who, early on in the Senate, right, decades ago, said that Republicans needed to take control of the federal judiciary, take the federal judiciary and the Supreme Court incredibly seriously. Why is that? That’s not because Mitch McConnell believes that the Supreme Court takes cases as they come and rules on them in a nonpartisan way.
Elie Mystal:
So let me get you out of here on this — whose ass do we need to put our foot up, right? Because, you know, I think about 2019, 2020, during the primary process, where he scoured the earth for a Democrat who was going to take the Supreme Court as seriously as it needed to be taken in a pre-Dobbs world, right? And honestly, when I’ve talked about this earlier on this series, I ended up with Pete Buttigieg, because he was the only one talking about it really, right? You know, you go down the list of progressives: Bernie Sanders, very late to the game; Elizabeth Warren kind of eventually did get there; Biden was the most resistant to Supreme Court reform and has continued to be so as president. So you know, we can talk about that. Right now, my current kind of punching bag is Dick Durbin, because he never should have been head of the Senate Judiciary Committee. It was a job that he did not have the teeth for, it should have been Sheldon Whitehouse, who has been on this for decades. And Durbin’s management of the Senate Judiciary Committee has confirmed all of my worst fears about how he would run things, even before Feinstein, you know, I don’t even know what to say, even before Feinstein. So like, I guess my question then is like, where are the future leaders on this issue, given that our current leaders on the Democratic side, at least, are so bad, and so unwilling to meet the Republicans where do they stand and fight their fire with fire?
Rhiannon Hamam:
Yeah, yeah. I think in the short term, it absolutely depends on continued increased pressure on people like Senator Dick Durbin, right. Who, yes, invited Chief Justice John Roberts with a lovely invitation to come speak to, to come speak to the judiciary committee about, you know, the proposal, the need for new ethics rules over there. John Roberts politely declined that invitation. And then what? This is the Senate.
Elie Mystal:
It wasn’t even that polite, quite frankly.
Rhiannon Hamam:
Right, right, just brushed it off. I don’t care about this. No thanks, John Roberts said, right. And this is the Senate Judiciary Committee, we’re talking about subpoena power, right? We are talking about the power to hold public hearings for public officials, right, who break the law. I am astounded that Clarence Thomas has very likely broken existing laws already. Set aside that we need new ethics rules, right? He has broken existing laws, and there has been no accountability, right, at all, nothing. So you know, we need these people because they are public officials, because they are political actors. They must be made to be accountable to the people, right. We need public hearings on this. Now, in the long term, you asked about future leaders and who those future leaders are. I think that law students right now, young lawyers who certainly are sort of, you could say maybe coming of age, in a Trump administration or post-Trump administration world, in a six conservative super majority Supreme Court world — they are really starting to understand where political pressure and where advocacy are gonna get us real results, right. And that’s in, I think, everything that we’ve talked about today, that’s in advocacy and organizing outside of the scope of the Supreme Court, saying these rulings, you can hand ’em down as much as you want, go off, but that doesn’t apply to me, right. And I am building people power, these new lawyers are saying, I am taking part in movements that are about building that people power so that a Supreme Court is accountable to the people and we are able to, you know, achieve justice and equality without the six maniacs.
Elie Mystal:
Let’s leave it there, because that is honestly one of the more hopeful messages that I’ve had on this entire series. Rhiannon Hamam, host of 5-4, thank you so much for joining me.
Rhiannon Hamam:
Thank you so much. This was a blast.
Elie Mystal:
The reason I wanted to create this show, and to a large extent the reason why I decided to become a journalist covering the Supreme Court, is because I believe that the people would take power back from the Court if only they knew that they could. Too often, people see a bad Supreme Court ruling (or string of bad Court rulings, or ERA of extremist indefensible Court rulings) and throw up their hands and say “welp, it’s the Supreme Court, nothing we can do.” Congress does that. The President of the United States, one of the most powerful people on the globe, does that too: “Hey, I think that six of the nine unelected law chiefs are causing human rights violations, but whattayagonna do?”
A lot! There is a lot we can do, and I believe people would do it if they only knew how many options we actually have. And I am happy if normie court watchers and establishment politicians consider me a bad influence. I am all about that Ferris Bueller life, y’all, and I am always encouraging my friends to skip indoctrination school and take over a parade.
If you’ve listened to this whole series, first of all, thank you. But more important, I have bad news for you: you’re like me now. You can never again hear about a Supreme Court ruling and say: “but there’s nothing we can do.” You can never again nod politely when your elected leaders pretend that they are powerless to stop the extremism of the Supreme Court. You can never again comfort yourself with the false belief that the system is working as intended, or the hope that things will naturally work themselves out.
Now you know, as I do, that the court can be reformed, it can be changed, and it can be stopped. And you know that the people who will not reform it or change it or stop it hold those positions because they like—or are willing to live with—the outcomes this Court is producing. Most likely, that’s because those outcomes do not take away their rights, or their dignity, or their ability to hop on a super-yacht and sail away from all the problems.
There are many bad arguments against court reform, but now you know how to defeat them. You know court expansion is not new or radical, you know term limits and ethics reform can be implemented, you know how Congress can take back power by controlling the court’s docket or stripping the court of its jurisdiction. You know what can be done. Now, we just need to find more people willing to do it.
In the words of Yoda: pass on what you have learned. Save us, it can.
This podcast was produced by Conor Gillies, Ludwig Hurtado, Babette Thomas, and Lizzy Ratner. Our original music was made by Ellington Peet.
Thank you to Thea Smith, Peter Lucas, Don Guttenplan, and Bhaskar Sunkara, for making this series possible.
Copyright c 2023 The Nation. Reprinted with permission. May not be reprinted without permission. Distributed by PARS International Corp.
Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.
Nikolas Bowie is the Louis D. Brandeis Professor of Law at Harvard Law School. He is a historian who teaches courses in federal constitutional law, state constitutional law, and local government law.
Rhiannon Hamam is a supervising attorney at the Richard and Ginni Mithoff Program at the University of Texas School of Law and host of the Supreme Court podcast 5-4.
This interview is adapted from Contempt of Court with Elie Mystal, an original podcast series from The Nation magazine about how to reform the Supreme Court. Subscribe wherever you get your podcasts. For previous episodes, click here.
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