Blue Mass Group

Reality-based commentary on politics.

To Protect Democracy, Diminish Judicial Review

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So, we have some real problems in America:

A lack of funding for public goods like transportation and public education.

Massive pollution in the form of methane and carbon dioxide burning up the planet (100 degrees in Seattle???).

Gerrymandering, secret political donations, and voter suppression of minorities who do not vote the way Republicans want them to.

A loss of bargaining power in the workplace and even employer interference in a worker’s private health decisions.

And in many cases, the majority of voters and legislators support solutions… yet five SCOTUS Justices can dominate the majority and reject these democratically chosen solutions through judicial review.

I want to encourage the other readers of BMG to spend fifteen minutes reading the testimony of Nikolas Bowie on the nature of judicial review as a tool to undermine democracy. I know we all had civics classes about how important judicial review is, but it is worth giving this viewpoint a good reading as it makes both a historical and a logical critique of the practice of judicial review.

(And note that gubernatorial candidate Danielle Allen’s ideas are an important part of this testimony.)

Read the whole thing.

UPDATE from August 3, 2021- Read Ian Milhiser’s explanation: SCOTUS is to blame for the wave of evictions about to harm Americans by the millions.

 

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Comments

  1. My old friend Niko makes a compelling argument, I do wonder what happens to Brown, Griswald, and Roe in his formulae where judicial review overturned laws enacted by state and federal legislatures. Or in Hamdi v Rumsfeld where the flawed AUMF provision creating enemy combatants was passed overwhelmingly after 9/11 with just a single nay vote. On what grounds could the justices insist on restoring habeas corpus and due process rights over that democratic supermajority? I’ll have to email him these questions and invite him to respond here.

  2. The testimony was a bit TL;DR for now, but I note that some of the most recent decisions we haven’t liked have actually upheld objectionable laws. Judicial review is more likely to become fraught when laws are overturned. That said, in a constitutional republic all the branches have legitimate roles to play even if some mandates have more democratic origins than others. We’re often taught the Marbury case established judicial review, but really how else can you interpret the combination of the supremacy and appellate jurisdiction clauses. I do think expanding the Supreme Court to one Justice per circuit makes sense, but frankly our side just has to get better at caring about judicial picks when campaigning for Senate and the Presidency.

    • “I do think expanding the Supreme Court to one Justice per circuit makes sense, but frankly our side just has to get better at caring about judicial picks when campaigning for Senate and the Presidency.” I wholeheartedly agree. I think the way we motivate our voters, activists, and elected officials is by pointing out key facts: For only about 10 years was there a progressive majority on SCOTUS, and the current Federalist Society judges are deliberately misreading the intent of the Reconstruction Amendments and the Voting Rights Act. We can not allow this.
      –and I encourage you to take a second read at it. Though long, its ideas are important, and I have already had one longtime Democrat attorney tell me this testimony is a gamechanger for him.

  3. Is the Supreme Court Nullifying The Voting Rights Act Bad?
    Poli sci PhD Scott Lemieux pushes back on an opinion by Econ PhD Kevin Drum:

    the Voting Rights Act, as amended in 1982, forbids state election laws that have a disparate effect on racial minorities, irrespective of facially neutral language. Drum apparently agrees with John Roberts that Congress should have narrowed the VRA rather than expanded its reach, but Congress concluded that racially discriminatory election laws were bad, and the Supreme Court’s job is to enforce the policy choice made by the legislative enactment, not the alternative proposed by hacks in Reagan’s Department of Justice. Alito’s opinion, however, simply acted as if Roberts had won rather than lost the argument, a grossly inappropriate abuse of judicial power.

    This is exactly the kind of thing Bowie is talking about–six people are dominating the will of Congress and the majority of the people… and ignoring the intent of the Reconstruction Amendments and the VRA. Judicial review must be curtailed if not ended because judicial review is a tool in the hands of those who want to suppress the votes of minorities, thereby reducing democracy in America.

    • As I recall the objection to VRA was that the pre-clearance provisions only applied to some jurisdictions based on the history of those jurisdictions. It would be easy for Congress to simply require that all jurisdictions play by the same rules despite some having proven more reliable than others.

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