A new argument on the far left holds that judicial review is a relic of slavery and white supremacy. “Contrary to what many people have come to believe, judicial supremacy is not in the Constitution, and does not date from the founding era,” Nikolas Bowie and Daphna Renan, law professors at Harvard, recently wrote in The Atlantic. “It took hold of American politics only after the Civil War, when the Court overruled Congress’s judgment that the Constitution demanded civil-rights and voting laws.”

It’s a novel argument, and one that may have some appeal for those looking for ways to undermine the Supreme Court after a string of conservative rulings. It also fits in neatly with the currently fashionable idea that every American institution was crafted by white supremacists. But it is wrong on every major point—a consequence of reading history backward, based on current-day preoccupations about race.

Judicial review, the companion doctrine to “judicial supremacy,” did in fact date from the Founding era and had nothing to do with slavery or white supremacy. “The interpretation of the laws is the proper and peculiar province of the courts,” Alexander Hamilton wrote in Federalist 78, describing judicial review. He also wrote that it should not be a threat either to individual liberty or to other institutions because the Court must rely upon other branches to enforce its decisions. That was a caveat, of sorts; nevertheless, Hamilton’s essay implied that the ultimate meaning of the Constitution would be determined by the Supreme Court. His views on judicial review undoubtedly arose from his skepticism of popular government. He never supported slavery and did not link judicial review to that practice.

The 1803 opinion in Marbury v. Madison, written by Chief Justice John Marshall, encoded Hamilton’s idea in the ongoing jurisprudence of the Supreme Court and is regarded as the ruling that formally established judicial review. The facts in this case were highly technical, having to do with the delivery of an appointment in the State Department; they had nothing to do with slavery, race, or related controversies. Marshall, though a slaveowner, was also a prominent Federalist and a proponent of union and national power—the forces that the Southern slave interest came to fear and oppose. Regarding judicial review, the Marshall Court’s major constitutional decisions involved other issues: contracts, interstate commerce, congressional authority to charter a National Bank, the Supreme Court’s authority over state courts, and federal power in the constitutional system. After Marbury, the Marshall Court knocked down several laws and judicial decisions arising from the states, but never an act of Congress.

The powers the Supreme Court claimed were controversial and never universally accepted throughout this period. Thomas Jefferson and Andrew Jackson said that the Supreme Court had no authority to command other branches of government: the Court could enunciate its views of the Constitution, but so could other branches and state governments. There was thus nothing “supreme” about the Court’s rulings, aside from their application to particular cases and controversies. Abraham Lincoln took a similar view in opposing the Court’s ruling in the Dred Scott case. That opinion, Lincoln said, applied only to the parties to the case, not to the wider question of whether slavery should be permitted in the new territories carved out of the Louisiana Purchase. The passage of the Fourteenth Amendment eventually reversed that decision. Progressives took a similar position in opposing the Court’s “liberty of contract” decisions in the early 1900s, as did President Franklin Roosevelt in the 1930s in his attacks on the Court’s anti-New Deal decisions. While judicial review was widely accepted, albeit in a narrow sense, judicial supremacy was not. The argument for judicial supremacy—that the Supreme Court is the final arbiter of the Constitution—was always contested by one side or another up until recent decades.

The claim that the Supreme Court ended Reconstruction is not even close to being true. Through the 1860s and into the 1870s, the Court upheld the Reconstruction Acts passed by the Republican Congress. These measures sought to protect the voting and civil rights of recently freed slaves and enforced them through a military occupation of the southern states. The Court went so far as to uphold the authority of Congress to suspend the Supreme Court’s jurisdiction over cases arising from the military occupation (Ex parte McCardle, 1869).

Reconstruction faltered in the mid-1870s due to electoral swings against the Republicans and in favor of the Democrats, who opposed Reconstruction policies. Democrats picked up 92 seats and captured the House of Representatives in the midterm elections of 1874, threatening the powers of Congress to enforce Reconstruction. Democrats probably won the disputed presidential contest of 1876, but they conceded the election to Republican Rutherford B. Hayes in exchange for an agreement to withdraw federal troops from the South, thus effectively ending Reconstruction. Democrats soon won control of southern states and began to use various legal artifices such as poll taxes and literacy tests, backed by campaigns of violence and terror, to disenfranchise blacks and suppress the Republican Party. Through these means, Democrats succeeded by the 1890s in imposing a racial caste system in the states of the old Confederacy—while suppressing Republican opposition. As they did so, they circulated the narrative that Reconstruction had been a colossal failure, which was not true.

The Supreme Court may have ratified or recognized the end of Reconstruction when, in 1883, it struck down the Civil Rights Act of 1875, which protected blacks from discrimination in public accommodations such as hotels, inns, and railways. The Court did so because it said that the Fourteenth Amendment enjoined the actions of states but did not authorize the federal government to regulate private businesses. Bowie and Renan (and others) assign great weight to this decision as a cause of the collapse of Reconstruction. The 1875 Act, however, was never firmly enforced because President Ulysses S. Grant did not support it, and the compromises surrounding the election of 1876 made it even more difficult to do so. The decision had no effect on Reconstruction, which was unwinding anyway with Democrats’ electoral gains. By the time the Court ruled on the Civil Rights Acts, northern opinion was moving on to other issues: the gold standard, regulation of the railroads, the rights of labor and labor unions, tariffs, and immigration. On some of these issues, Republicans found it helpful to have the support of those southern Democrats. (The main provisions of the 1875 Act were reenacted in the public-accommodations provisions of the Civil Rights Act of 1964.)

The Court might have exercised its powers of judicial review under the Fourteenth and Fifteenth Amendments and the Reconstruction Acts to overturn the “Jim Crow” laws enacted across the South in the 1880s and 1890s. It did not do so. The Court ruled in Plessy v. Ferguson that “separate but equal” arrangements in railway cars were compatible with the Fourteenth Amendment—an example of a case in which the Court refrained from exercising its powers of judicial review. Following that decision, southern states enacted segregation policies in education and public accommodations, while extending restrictions on voting—policies that remained in place into the 1960s. There is little doubt that the Court had ample authority to strike down these laws, though critics since then have not blamed judicial review but rather the Court’s failure to exercise it.

Judicial supremacy—the doctrine that Supreme Court rulings are the supreme law of the land—took hold for keeps only in the decades after World War II and then as a consequence of the Court’s decisions in the school-desegregation cases. The Court’s ruling in Brown v. Board of Education (1954) reversed Plessy and declared that legally segregated school systems were unconstitutional. The Court called on state governments to begin integrating the public schools, causing some jurisdictions to embark on a campaign of “massive resistance,” closing down or privatizing schools and generally putting up roadblocks to prevent court-ordered desegregation—the kinds of steps that were upheld in the 1880s and 1890s. In the process, some southern officials put forth a new version of an old doctrine that state governments have as much right as the Supreme Court to interpret the Constitution. Since the states disagreed, the Court’s ruling counted for nothing in those jurisdictions. This was viewed outside the South as a dangerous doctrine that, if widely followed, would undermine the rule of law.

Things came to a head in 1957 when Governor Orval Faubus of Arkansas, backed up by mobs threatening violence, blocked enforcement of a federal court order to desegregate the public schools in Little Rock. President Dwight Eisenhower reluctantly sent in federal troops to enforce the court orders, declaring, “Our personal opinions about the (desegregation) decision have no bearing on the matter of enforcement; the responsibility and authority of the Supreme Court to interpret the Constitution are very clear.” Thus Eisenhower endorsed a version of judicial supremacy, albeit toward the goal of desegregation and racial equality (and not in the service of white supremacy). In the process, however, he also endorsed Hamilton’s view of the limited powers of the Supreme Court: it needed support from the other branches.

The Supreme Court fleshed out this doctrine in 1958 in an extraordinary opinion in the case of Cooper v. Aaron. Following riots in Little Rock in 1957, the school board in that city filed suit in federal court asking for suspension of the desegregation orders, asserting that disorder, threats of violence, and opposition from the governor and legislature made it impossible to implement them. The governor and legislature claimed that they were not bound by the court order, nor by the opinion in Brown. Not being bound by the order, they had no obligation to enforce it. Lacking enforcement powers, the school board could not implement it.

The Supreme Court soon issued a unanimous per curiam opinion in the case, said to be written by Justice William Brennan, in which it reasserted the doctrine of judicial supremacy and applied it to the cases at hand. The supremacy clause in Article VI made the Constitution the supreme law of the land, while various precedents beginning with Marbury made the Supreme Court the final arbiter of the Constitution. It followed that the Court’s decision in Brown was the supreme law of the land, binding on all parties, notwithstanding state or local laws that might contradict it. The same principle applied to federal court orders descending from Brown. There were thus no constitutional means by which anyone could disobey or resist the orders. This decision won wide approval outside the South, aided by Eisenhower’s apparent endorsement.

The opinion was a strong statement of judicial supremacy, and one that withstood heated attacks on the Court through the 1960s as it advanced its agenda across several areas, from school desegregation to prayer in the schools to legislative reapportionment, even as some called for the impeachment of the chief justice. Criticisms of the Court in that era came mainly from conservatives who questioned these interventions or said that the justices had gone too far in implying that criticisms of its opinions undermine the rule of law. Edwin Meese, then serving as attorney general, advanced a version of this argument in a law review article in 1987, reiterating Lincoln’s view that everyone is bound by the Court’s decisions in particular cases but not by the general principles arising from those cases. By and large, progressives refrained from making these criticisms, no doubt seeing that judicial power was advancing their causes.

The conservative drift of the Court in recent years has led some of these progressives to reconsider their views, and to advance criticisms formerly made by conservatives. Many of them are familiar: the Court is an elitist institution; justices should defer to public opinion or to the elected branches; the Court’s decisions are political, not lawful or constitutional. Some, like Bowie and Renan in The Atlantic, have gone further to argue that the Court’s authority is rooted in racism and is therefore illegitimate. It is hard to know what to make of a claim that is as counterfactual as this one. Judicial supremacy, loosely defined, won wide approval for the first time only in the postwar era in the context of the civil rights revolution.

Left-leaning academics seem to be engaged in an enterprise of rewriting history to conform to current ideological goals. Major universities, newspapers, television networks, and magazines are also involved in this campaign; the 1619 Project is merely the best-known example. Current attacks on the Supreme Court incorporate similar themes: since the present Court upholds conservative goals (an exaggeration), history must be rewritten to discredit the Court, judicial review, and “judicial supremacy.” It will have to be rewritten again whenever the Court changes sides. Judicial review’s detractors believe that they are revealing a dark side of history when in fact they are falsifying history. Others, of different views, may decide that they can play that game, too—and where it ends, no one knows.

Photo by Kent Nishimura / Los Angeles Times via Getty Images


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