In his April 8 New York Times column, Jamelle Bouie accuses the Supreme Court of being focused on “the interests and prerogatives of powerful political minorities—you might call them factions—that seek to dominate others free of federal interference.”
Bouie says that Americans frustrated with the Court might wish to get rid of judicial review—the Supreme Court’s power to declare laws unconstitutional—but that getting rid of it completely is impossible, given that judicial review is baked into our constitutional order. “The best we may be able to do, then, is to restrain judicial review—to place it under greater democratic control and remind our power-hungry Supreme Court that it exists within the constitutional system, not above it.”
It’s wildly unclear what Bouie means by this—how exactly he thinks judicial review should be “under greater democratic control.” That line was the last sentence of his column, and it leaves much to the imagination.
But this much is clear: Bouie, like many commentators, believes Supreme Court Justices are motivated by politics, not law—and he’s hoping to diminish the Court’s authority and independence.
Our Spring 2022 issue of Sword&Scales argues that the Supreme Court is far less politicized than people like Bouie believe, and that Justices’ allegiance to law—not voters or parties—is what makes the institution an indispensable protector of individual liberty. In our article “A hundred-year-old dissent haunts today’s judiciary,” authors...
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