A New Book Argues the Supreme Court Has Usurped Legislative Power

In their new work Supremacy, Harvard Law professors Nikolas Bowie and Daphna Renan contend that the Supreme Court’s power of judicial review is not rooted in the Constitution and amounts to a coup against democratic governance. They recount how early framers debated, but did not agree, on granting justices the right to invalidate statutes, yet the Court assumed that role in the 1800s. The authors distinguish between “horizontal review” of federal laws— which they argue should be barred— and “vertical review” of state statutes, which they deem permissible.

Historical cases such as Dred Scott, Lochner, and the recent Dobbs decision are examined to show the Court’s impact on civil rights and social policy. Throughout American history, both left-wing and right-wing movements have decried judicial supremacy when it conflicted with their goals. Bowie and Renan conclude that without decisive congressional action to limit the Court, the imbalance will persist, echoing Abraham Lincoln’s warning about an unchecked judiciary.