The Supreme Court’s Power Is Based on the Lie of Its Supremacy

This article appears in the October 2026 issue of The American Prospect magazine. If you’d like to receive our next issue in your mailbox, please subscribe here.

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Any search for the chief enabler of Donald Trump’s corruption and subversion of American democracy really must lead to one and only one place: the Supreme Court. The reactionary majority, led by Chief Justice John Roberts, has repeatedly bailed Trump out from his many prosecutions, enabled his wildly lawless trampling over the basic appropriations process, and—in what is for my money the worst Court decision in American history, Trump v. U.S.—explicitly immunized him from being prosecuted for breaking, in effect, any law.

Yet despite that, many Trump critics still balk at proposals to attack the Court’s power head-on. At a recent conference about liberalism in the 21st century, when asked about Court reform, Bob Bauer, former White House counsel for President Obama, warned that “You don’t respond to norm breaking by breaking more norms.” The anti-Trump conservative writer David French said: “Court packing will lead to the dissolution of the republic.”

After Trump v. U.S., President Biden himself published an op-ed arguing for a set of frankly pitiful reforms. A binding ethics code and term limits would be welcome, albeit inadequate. But proposing a constitutional amendment stipulating that the president can’t break the law is both practically impossible and tacitly endorses the idea that once the Court has spoken, no matter how outrageous its decision, the only recourse is to amend the Constitution.

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The Supreme Court question is crying out for some way to lever American voters and elites alike out of this learned helplessness. One solution can be found in the pages of Supremacy: How Rule by the Court Replaced Government by the People, by Harvard Law professors Nikolas Bowie and Daphna Renan. They demonstrate beyond any question that the Constitution was not meant to establish a system of judicial supremacy in which the Court exercises dictatorial powers. Previous members of Congress and justices alike have taken for granted that Congress can override the Court’s judgment about constitutional interpretation, and on many occasions it has done so.

Every American, and particularly every Democratic voter, member of Congress, or candidate for office, must read this book.

Bowie and Renan ably run through the story of how the Supreme Court’s power has ebbed and flowed over the years, from the days of John Marshall, up through Roger B. Taney’s attempt to settle the question of slavery with Dred Scott v. Sandford, the curtailing of civil rights and economic regulations in the Gilded Age, the brief defense of civil rights under Earl Warren, the crypto white supremacy of William Rehnquist, and the open white supremacy and corrupt authoritarianism of John Roberts.

The Constitution was not meant to establish a system of judicial supremacy in which the Court exercises dictatorial powers.

By now, this is familiar history to any Court critic, particularly because—aside from a brief exception in the mid-20th century—the Court has been a reliable ally of violent racism and ruthless corporate exploitation. “There is only one minority that the Court has consistently protected from Congress: the wealthy,” they write.

However, the authors also excavate some obscure history that was new to me. The most important fact they establish is that the traditional narrative of Marbury v. Madison—the decision that supposedly established judicial supremacy in the United States, as taught in high schools across the country—is an invented tradition.

The decision came down in 1803, after two elections in which Thomas Jefferson’s Democratic-Republicans had swept the Federalists out of power. The Federalists had attempted to barricade themselves in the judiciary, but after some congressional debate explicitly about judicial supremacy, the Democratic-Republicans rooted the Federalists out. In 1802, they abolished the courts the Federalists had set up, set various limits on judicial power, and blocked the Supreme Court from meeting for an entire year to keep them from meddling.

Marbury itself was based on an obvious mistake (Marbury should not have been allowed to file his case directly in the Supreme Court), had no practical effect whatsoever, and was quickly forgotten. It was a parting shot from a whipped Court that “had no interest in being further disciplined by Congress,” Bowie and Renan write. When it did rule on the core of the 1802 reforms, the Court let them stand. Marbury’s author, Chief Justice John Marshall, “would spend the rest of his career explicitly deferring to Congress’s understanding of its constitutional powers.”

The decision that actually attempted to establish judicial supremacy over Congress was the infamous Dred Scott. Unlike Marbury, this was a decision on a highly controversial topic, and was entirely intended to end all civil rights for Black people, slave or free, and to overturn the Missouri Compromise, which had limited the extension of slavery.

For defenders of judicial supremacy, a biliously racist decision that did more than anything else to touch off the Civil War is an inconvenient foundation on which to build a movement. So, led by Justice David Brewer in the 1890s—in the midst of Court rulings striking down civil rights protections, child labor laws, and minimum-wage standards—they dug up Marbury, dusted it off, and cited it as “conclusive evidence that all Americans once believed the Constitution itself justified horizontal review.” The American Bar Association joined in with a “John Marshall Day” in 1901, celebrated at the Capitol Building and in 37 states. It was a farce.

A similar aspect of Court history that Bowie and Renan make clear is that judicial supremacy has never been some principled exercise in the application of constitutional scruples. It has always had a heavy dose of grubby political wheeling and dealing in which the Constitution can be ignored as needed. Justice John Catron, for instance, got President-elect Buchanan to talk his fellow Pennsylvanian, Justice Robert Grier, into joining Dred Scott so that it wasn’t only Southerners in the majority.

Later, the Court could only start striking down Reconstruction-era civil rights laws—based as always on hyper-tendentious misreadings of the extremely clear Reconstruction Amendments—because a conservative faction of the Republican Party found it convenient. For their part, so-called Liberal Republicans, increasingly racist and aligned with capitalist business owners, calculated after losing several elections that the Court was the best way to protect the wealthy from taxes, regulations, and unions.

And the Court has never been grubbier than it is today. I used to argue that Santa Clara County v. Southern Pacific Railroad Co. was one of the worst decisions in Court history because it did not even attempt to explain its holding granting civil rights to corporations. Today, with its “shadow docket,” the Roberts Court has institutionalized that practice, both eclipsing and routinizing those earlier decisions that had provided rulings without justification.

Perceived political advantage also explains how support for judicial supremacy has flipped back and forth over the years. Progressives and liberals have opposed it when reactionaries were in the majority, while reactionaries opposed it in the brief period when liberals had the upper hand. The problem today is that liberals have not yet returned to what should be their rightful place among judicial supremacy’s critics, alongside past reformers like Franklin Roosevelt and Frederick Douglass.

BOWIE AND RENAN ALSO RESURRECT an important distinction between different kinds of judicial review: vertical review, in which the Court considers whether state and local laws are consonant with federal laws and/or the Constitution, and horizontal review, in which the Court rules on acts of Congress. Judicial reformers up through the mid-20th century typically supported the former practice, as being part of how Congress enforces its superior power over the states, while lambasting the latter idea. More recently, both have been unhelpfully conflated under the term “judicial review.”

Separating the two ideas makes good sense—not least because almost every good thing the Court has ever done has been an exercise of vertical review. Brown v. Board of Education, Bolling v. Sharpe, Cooper v. Aaron, and Loving v. Virginia, for instance, were about striking down bigoted state laws.

Unfortunately, as the authors point out, despite the fact that most of the initial litigation that led to Brown and other such decisions centered on the Ku Klux Klan Act of 1871 and other anti-discriminatory Reconstruction-era legislation, liberal justices were uncomfortable with such arguments and pivoted to the 14th Amendment, likely because it preserved their power as arbiters of the Constitution. In Cooper (which mandated school desegregation in Arkansas), they laid out an even stronger claim of judicial supremacy.

This desire to preserve horizontal review for momentary advantage turned out to be a disastrous mistake. A whole generation of liberal lawyers and writers internalized the false belief that the Court was not only an important bulwark for civil rights, but also that it deserved the sole power to interpret the Constitution. Now the Roberts Court is using that bipartisan belief to rip the Constitution to shreds.

JUST AS INTERESTING AS SUPREMACY is its source: two tenured Harvard Law professors who both clerked for sitting Supreme Court justices. Attorneys situated like these almost never write books like this, because Harvard Law is the core of the American legal priesthood. Its graduates are preposterously overrepresented among clerks, among the lawyers who argue before the Court, and among the justices themselves: Four of the current bunch went there. Traditionally, Harvard Law is supposed to create a bipartisan class of scholars who crank out sophisticated-sounding arguments for why it’s good for Harvard Law graduates to enjoy immense power serving the needs of judicial supremacy. As the authors point out, Harvard’s Laurence Tribe was an important liberal voice for judicial supremacy in the late 20th century.

The very fact that such hyper-elite scholars have written such a blistering critique of the current Court’s abuses and corruption is encouraging. But more than that, Supremacy reframes the entire debate about judicial reform in a useful, and dare I say learned, fashion. Much of the American legal profession, and particularly law professors, has been stunned into inaction by the second Trump administration. The whole edifice of academic constitutional law is in a shambles created by a Court that throws out formerly load-bearing precedents and huge swaths of the Constitution itself every term.

A whole generation of liberal lawyers and writers internalized the false belief that the Court deserved the sole power to interpret the Constitution.

What Bowie and Renan show is that this helplessness is unnecessary and frankly ignorant. All Trump and John Roberts are doing is ripping the mask off a judicial status quo that has always been a despotic sham. From a political-institutional standpoint, an absolute judicial veto over legislation with a simple majority vote is tyrannical by definition and makes a hash of the basic checks-and-balances system of the Constitution. That’s why no other democracy has one.

Of course justices have routinely abused this power to enact their personal and political preferences whenever they could get away with it. “Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privileges of their corps,” Thomas Jefferson once wrote. “The Constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots.”

FOR MANY YEARS, JEFFERSON’S VIEWS were taken for granted, and what Bowie and Renan call “democratic constitutionalism”—the idea that all branches of government and the people themselves have a duty to read, understand, and interpret the Constitution, rather than it being the sole possession of a legal priesthood—was widely accepted. When Dred Scott came down, the reaction was not stunned submission but boiling outrage. Several states passed laws refusing to obey the decision, and the ruling was later explicitly repealed by Congress. During and after the Civil War, various proposals were discussed to permanently restrain the Court’s power. Even the moderate Sen. Lyman Trumbull (R-IL) drew up a proposal that would forbid any judicial review of laws based on the Reconstruction Amendments.

Indeed, democratic constitutionalism still provides the Court’s foundation. Its budget comes from regular appropriations, and its basic structure, from its size to what cases it must hear, is determined by laws passed by Congress in 1789, 1866, 1869, 1891, and 1925. Congress can change these at any moment. Whether it is by adding additional hurdles to horizontal review, formally prohibiting the practice, or (as I favor) overhauling the entire court system so the Supreme Court is drawn at random from all federal judges for each case, Congress must reassert its rightful power as a coequal branch of government.

It follows that the most common liberal proposal for Court reform, namely adding more justices to break the conservative majority, while much better than nothing, is arguably still a capitulation to judicial supremacy. It would erode horizontal review in practice while preserving it in principle—the exact same mistake that the Warren Court made during the civil rights movement.

This matters not just because the Court’s power must be broken permanently if American democracy is to survive over the long term, but also because the Court still has an important job to do. The Republican Party is busy setting up Jim Crow II in every state it controls. Restoring democracy within the states will require federal power that brings them to heel. Federal courts are among the most important tools for doing this.

In a democratic system, this is what courts and lawyers are for—not for legislating via tendentious misrepresentation of words any fool can read, but for ensuring that the laws of Congress are interpreted and enforced consistently and fairly, and for ensuring that the states don’t negate them within their borders. As the Constitution requires in Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican Form of Government.”

This article appears in Oct 2026 Issue.