Would Biden curtail the Supreme Court?

Is it time for a dramatic change in the way the Supreme Court does business?

No one really expected that question from the new 36-member commission President Joe Biden established in April to study potential court reforms. He created it to fulfill a campaign promise, but most people assumed it would focus on relatively limited proposals, such as whether term limits should be imposed on Supreme Court justices and whether the number of justices on the court should be increased.

But instead, at its first public meeting June 30, the commission came roaring into life determined to raise a bigger, broader and even more controversial subject: Does the Supreme Court wield disproportionate power that needs curtailing?

In particular, the commission zeroed in on what’s known as “judicial review,” the awesome power the nine justices of the court have to strike down laws passed by Congress or the states if they’re deemed to conflict with the U.S. Constitution.

“The Supreme Court is an anti-democratic institution,” said Nikolas Bowie, an assistant professor of law at Harvard Law School, in powerful testimony to the commission. He argued that the court had a long history of invalidating laws designed to expand political equality and had been “silent at best” on the dispossession of Native tribes, the exclusion of Chinese immigrants and the persecution of political dissidents, among other subjects.

Bowie said it would be good to do away with the power of judicial review.

Samuel Moyn, a Yale Law School professor, also criticized judicial review, and proposed various reforms to weaken it. “Constitutional law is now more openly ‘politics by other means’ than some once believed or hoped,” Moyn said.

To non-lawyers, this stuff can sound like legalistic mumbo-jumbo. But overthe years, the Supreme Court has dramatically shaped the direction of the country by striking down scores of federal, state and local laws. In many cases, these laws were passed by Congress, signed by the president and supported by American voters, only to be overturned by as few as unelected justices.

In the infamous Dred Scott case in 1857, the court struck down the entire Missouri Compromise — Congress’ attempt to prevent the spread of slavery into new territories — as unconstitutional. In 1905, the court overturned a New York law that set a maximum 10-hour workday for employees. In 1954’s Brown vs. Board of Education, the court ruled that laws permitting school segregation violated the Constitution’s promise of equal protection.

More recently, the court has struck down state laws banning homosexual conduct and same-sex marriage. In the Citizens United case, the court threw out campaign finance restrictions it said violated the First Amendment, thereby opening the door for unlimited political expenditures by corporations. In 2013, it tossed a critical section of the Voting Rights Act that protected voters from racial discrimination.

And who gave the court this power? The founders? The Constitution? God?

Actually, none of the above. The Constitution says very little, it turns out, about the Supreme Court, other than that there shall be one.

Basically, the justices took the power of judicial review for themselves in 1803 in a famous case called Marbury vs. Madison, which arose from a dispute between John Adams and Thomas Jefferson over presidentialappointments. In a unanimous opinion, the court struck down a section of law passed by Congress for the first time, and Chief Justice John Marshall set the high court on a path to become the supreme, final arbiter of which laws violate the U.S. Constitution.

Some people think judicial review is great as a check on legislative overreach. Some find it undemocratic because it usurps power that belongs with the other two branches of government.

Challenges to the court’s power seem to come every 50 or 75 years, Harvard Law School professor Mark Tushnet told me. They happen in times of political turmoil or division, or when the court appears too partisan or to be blocking the popular will. President Abraham Lincoln questioned the court’s power in his first inaugural address, and President Franklin D. Roosevelt did as well when it blocked his New Deal policies.

“The Constitution is subject to interpretation,” Tushnet said. “And when the court chooses one interpretation over another, people ask why its interpretation should prevail.”

I’m in favor of keeping judicial review. Despite many bad decisions (see: Plessy vs. Ferguson or Korematsu vs. U.S.), the court has mostly been an articulate defender of the rule of law, and has often protected the rights of those who need protection. It has not been way ahead of its time or adequately removed from politics, but it has been an obstacle to rash congressional action. It’s hard to see what other institution could fill that role.

On the other hand, there are ways to modify judicial review.

You could require a supermajority vote of seven justices (out of nine) to invalidate a law passed by legislatures.

Or the U.S. could emulate Canada. There, the high court may rule a law to be in violation of the Canadian Charter of Rights and Freedoms — but Parliament may re-enact and enforce such a law anyway, as long as it declares it is doing so “notwithstanding” the court’s decision.

People might be less frustrated with the court if it was easier to pass constitutional amendments. Many wanted to do so after the Citizens United decision. But the barriers are so high that the Constitution has been amended only twice in the past 50 years. (Of course, lowering those barriers would itself require a constitutional amendment.)

I doubt judicial review is going away soon. It would be an awfully radical reform proposal to emerge from a relatively toothless commission. (The commission holds its next meeting today.)

Still, the discussion is a healthy one. It serves as a warning to the justices to adhere to constitutional principle, restrain their personal, partisan opinions and defer, within reason, to Congress — or risk losing power.

And it is a reminder to all of us that American democracy is neither perfect nor beyond improvement.

Nicholas Goldberg is a columnist for the Los Angeles Times.