Harvard Law School professor, Nikolas Bowie, talks about delegitimizing the Supreme Court and argues for more control by the people and their representatives. Rhiannon Hamam discusses direct action to take back power from the Court. The podcast explores the declining approval rating of the Supreme Court, its power of consent and judicial review, challenges surrounding interpretation of the Constitution, and bypassing Supreme Court rulings through community organizations. It also delves into actions outside the court's authority, the Democratic Party's limited imagination, and conservative defiance of court rulings.
Delegitimizing the Supreme Court is crucial for reforming the court and restoring democratic control.
The court's legitimacy and power are based on consent and enforcement of its orders by those in power and the people.
The Supreme Court's power to invalidate federal laws has undermined Congress and hindered the enforcement of laws protecting civil rights.
Deep dives
Supreme Court's Approval Rating Hits Record Lows
The Supreme Court's approval rating is at record lows, with only 40% of Americans approving of its job performance. This significant drop in approval rating calls for a reevaluation of the court's legitimacy and power. The court's approval rating has traditionally been higher, averaging over 50% since 2000. It is argued that the court's approval rating should be even lower if meaningful reform is to be achieved. Delegitimizing the court's power is crucial in order to restore democratic control over the legal system.
Understanding the Supreme Court's Role and Legitimacy
The legitimacy of the Supreme Court as the highest authority in the United States is discussed. It is compared to the parental authority one has over their children, which is based on consent and legitimacy. Similarly, the court's authority over Congress and the president is based on their consent and enforcement of its orders. The consent and view held by both the people and those in power determine the court's legitimacy. Questioning this legitimacy and finding ways to reduce its power and increase democratic control is crucial for reforming the court.
The Historical Roots of Supreme Court's Power
The historical origins of the Supreme Court's power are discussed, focusing on the case of Marbury v. Madison in 1803. This case is often seen as establishing the court's power of judicial review. However, it is noted that the court wasn't actually disagreeing with Congress in this case, but rather interpreting a federal law's applicability. The first instance where the court disagreed with Congress on the constitutionality of a law was the Dred Scott v. Sanford case in 1857. This case showcased the court's power to strike down federal laws and sparked controversy, ultimately leading to a cultural counter-revolution against movements advocating for multiracial democracy and workers' rights.
The Problem with Supreme Court's Power to Invalidate Laws
The problem with the Supreme Court's power to invalidate federal laws is examined. It is argued that this power undermines the role of Congress and the people's representatives in interpreting the Constitution. The court's ability to interpret constitutional amendments, such as the 14th Amendment during Reconstruction, led to conflicts with Congress and hindered the enforcement of laws aimed at protecting civil rights. The disagreement between the court and Congress, rather than the court's interpretations itself, became the root of many issues in the justice system. Shrinking the court's power and finding political solutions are proposed as ways to restore democratic control.
Delegitimizing the Supreme Court and Empowering the People
Delegitimizing the Supreme Court is discussed as a means to restore power to the people. Highlighting the importance of the people's consent and their role in democracy, it is emphasized that the court's authority can be challenged and limited through various means. Examples are provided, such as states passing laws to protect healthcare providers' rights, community support networks providing free abortion pills, or labor organizing demanding workers' rights. The power of imagination is also emphasized, encouraging people to imagine a legal system that prioritizes equality and justice for all. Political pressure, advocacy, and organizing outside the scope of the Supreme Court are seen as effective ways of achieving justice without relying solely on the court's decisions.
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.
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.
