Nikolas Bowie's statement to the Presidential Commission on the Supreme Court is a breath of fresh air - throwing away the reverential cant in which the Supreme Court is routinely cloaked. I have touched on many of these points in classes and blog posts over the years, but never with the clarity and candor Bowie brings to the fore. - GWC
Presidential Commission on the Supreme Court of the United States
The Contemporary Debate over Supreme Court Reform:
Origins and Perspectives
Co-Chair Rodriguez, Co-Chair Bauer, and members of the Commission,
thank you for inviting me to testify. You have asked for my opinion about
the causes of the current public debate over reforming the Supreme Court of
the United States, the competing arguments for and against reform at this
time, and how the commission should evaluate those arguments.
The cause of the current public debate over reforming the Supreme Court is
longstanding: Americans rightfully hold democracy as our highest political
ideal, yet the Supreme Court is an antidemocratic institution.
The primary
source of concern is judicial review, or the power of the Court to decline to
enforce a federal law when a majority of the justices disagree with a
majority of Congress about the law’s constitutionality.
I will focus on two arguments for reforming the Supreme Court, both of
which object to the antidemocratic nature of judicial review.
First, as a
matter of historical practice, the Court has wielded an antidemocratic
influence on American law, one that has undermined federal attempts to
eliminate hierarchies of race, wealth, and status.
Second, as a matter of
political theory, the Court’s exercise of judicial review undermines the
value that distinguishes democracy as an ideal form of government: its
pursuit of political equality.
Both arguments compete with
counterarguments that judicial review is necessary to preserve the political
equality of so-called discrete and insular minorities. But even accepting that
the political equality of all Americans should be protected, the justification
for judicial review is not persuasive as a matter of practice or theory.
I believe you should evaluate the proposals for reforming the Supreme Court
by asking whether they will make the United States more democratic...
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