Fix the Supreme Court and Piss John Roberts Off with This One Neat Trick
Photo by Fred Schilling, Collection of the Supreme Court of the United States, Public domain, via Wikimedia CommonsSupreme Court Chief Justice John Roberts released his annual belly-aching report, chastising Americans for losing faith in the Court while avoiding the billionaires’ pet elephants in the room like Clarence Thomas who have provided immense amounts of evidence to shake people’s confidence in the Court. I don’t want to get into his bad faith argument that tries to connect rising violence against judges to the broad-based disavowal of the legitimacy of the Court that Roberts oversees, but I do want to use his defense as a jumping off point to highlight one of the best ways to undercut the Roberts Court’s astonishing corruption and hackish partisanship marketed to the public as responsible jurisprudence.
In his year-end report, Roberts defends judicial review, established in 1803 by Marbury v. Madison, where the Court ruled that it could overturn laws that it believed to violate the constitution. If you’re wondering what kinds of laws it envisioned striking down, the first time it used this immense power was not until 54 years later when the Court nullified the Missouri Compromise, ruling that enslaved people were not citizens and that Congress had no right to ban slavery in a federal territory in Dred Scott v. Sandford, one of the major contributing events to the Civil War.
Hans Kelsen was the inspiration and driving force behind the European model of constitutional review, gaining this status as the principal drafter of the Constitution of the Austrian Second Republic in 1928, and he pointed out the fundamental flaw at the heart of American-style judicial review established in Marbury v. Madison.
“To annul a law is to assert a general [legislative] norm, because the annulment of a law has the same character as its elaboration – only with a negative sign attached…A tribunal which has the power to annul a law is, as a result, an organ of legislative power.”
Hearing about this as a freshman political science major was one of my formative radicalizing moments, as I was gobsmacked to learn that the Supreme Court’s fundamental power is not in the constitution, and not long after it was ratified, the Court just unilaterally declared itself an unelected and unaccountable super legislature, but was so afraid of this new unchecked power that it didn’t use it for half a century. When I protested this obvious coup against the other two branches of government, I was shouted down by my Very Serious professor for not understanding how Very Serious and Very Important judicial review is to the American legal system. Simply raising this question about the wisdom of Marbury v. Madison to status quo respecters in the subsequent years was akin to questioning gravity, and every interaction I had with these types made me more convinced that either I or they had gone crazy.
Given that I have spent the two decades since my freshman year in college watching the Supreme Court further beclown itself using the power of judicial review as the American public has lost faith in the Court, I will accept my professors’ apologies if they happen to be reading this. The American legal system is a byzantine maze of racism and corruption designed around America’s founding belief that only land-owning white men should get to have a say in the direction of the country, and it’s long past time we stopped assuming it’s the best system that anyone has come up with or that it has altruistic ends. Any legal system that supposedly “abolishes” slavery while leaving a prison-industrial complex-sized loophole in it enabling over a million people in America to still be classified as slaves in 2025 is obviously not one that operates in good faith.
Roberts correctly notes in his year-end report that judicial review has been used for good in the past, like in the Warren Court’s fight for civil rights in cases like Brown v. Board of Education. But the Supreme Court defenders always point to the Warren Court as its paragon of virtue because it’s the only era of the Supreme Court that wasn’t defined by its complete and utter fealty to capital and/or racism. You don’t see champions of the Supreme Court as a force for good talking about decisions from the 1870s for a reason, they always love to focus on those sixteen years under Warren that are objectively, out of the norm for the Court.
As Adam Serwer detailed in his excellent 2018 piece for The Atlantic, the post-Reconstruction Supreme Court which “gave its constitutional blessing to the destruction of America’s short-lived attempt at racial equality piece by piece” is the best comparison for today’s Roberts Court. As much as Americans, especially many liberals wrapped up in the mythos of our founding, love to wax poetic about our supposed egalitarian legal system, Serwer points out that Jim Crow simply could not have been made possible without the federal courts providing the “scaffolding” for it.
While judicial review has been its primary weapon in the Supreme Court’s longtime effort to make life worse for Americans who are not land-owning white men, it’s fair to question how the Court would function without it. None of us know a life without the Supreme Court being the final arbiter of law in America, and the idealistic notion of it as a force to guarantee civil rights is difficult to envision without the Court determining what is and is not law in America. How could the Warren Court have made Brown v. Board of Education a reality without some kind of enforcement mechanism?
But there is an alternative vision across the Atlantic Ocean, as Alec Stone Sweet, current Chair of Comparative and International Law at The University of Hong Kong, detailed in an excellent 2003 article for the Michigan Law Review, titled “Why Europe Rejected American Judicial Review – And Why It May Not Matter.” The European judicial model is similar to the American one, but with one key difference: it separates questions of constitutionality from the traditional judiciary, as Stone Sweet details.
The European model of constitutional review can be broken down into four constituent components. First, constitutional judges alone exercise review powers; the “ordinary” (that is, the nonconstitutional) judiciary may not invalidate norms or acts on grounds of unconstitutionality. Second, terms of jurisdiction restrict constitutional courts to resolving constitutional disputes. Formally, constitutional judges do not preside over litigation or appeals, per se, which remain the purview of the judiciary. Instead, constitutional judges answer the constitutional questions that are referred to them by, among others, elected politicians and ordinary judges. Third, constitutional courts have links with, but are detached from, the judiciary and legislature. They occupy their own “constitutional” space, one that is neither “judicial” nor “political,” as those terms are commonly understood in Europe. Fourth, most constitutional courts are empowered to determine the constitutionality of statutes without respect (or even prior) to their application, usually upon referral by opposition legislators or other elected officials.
This is not to say that the European model is perfect, as Stone Sweet noted in 2003 that “in just the past three decades, the French, German, and Italian courts have, respectively, invalidated more national laws than has the U.S. Supreme Court – in its entire history.” But I use it to point out that an alternative does exist to the American-style “Government of Judges” that so many Europeans abhorred throughout the 19th and 20th centuries as they built the legal system that governs their lives today, informed by our failures of the past.
At its core, the Supreme Court is not a legal body, but a negative legislative one. John Roberts can pretend otherwise all he wants, but his Court’s decision to overturn Roe v. Wade proves otherwise. Roberts has blood on his hands, as women are dying because doctors are prohibited from performing simple procedures entirely due to legal fears over the Court’s ruling and the myriad negative repercussions it has spawned for women. What John Roberts has done with his Roe reversal is functionally no different from Congress passing legislation asserting that certain women should be put to death under certain circumstances that Roberts’ political party could construe as a threat to their narrow conception of the constitution. Republicans have spent the entire post-New Deal era proving that many beliefs about the law are nothing more than their partisan fervor, as exemplified by building an entire infrastructure to etch conservative politics into our judicial branch under the guise of legal scholarship through the Federalist Society.
Franklin Delano Roosevelt is perhaps our only president to see the Court for the political body it has always been, as he fought fire with fire against a Court who decided that the New Deal was unconstitutional. He threatened to use his political powers to expand the Court and dilute their power, producing a compromise known as “the switch in time that saved nine” which kept the Court’s nine members intact while they stopped blocking FDR’s bills. We could use a lot more politicians these days, especially on the left, who see the Court for what it is as clearly as FDR did.
While my title is obviously flippant and overturning Marbury v. Madison cannot unilaterally fix the Supreme Court, it would defang it of vast power it has long proven it is not responsible enough to wield. I don’t know how to build a legal system that both respects the legislature’s power to write laws and the judiciary’s power to interpret them while guaranteeing that every person’s fundamental human rights are respected, but this one we built over the last quarter century in America sure ain’t it. Given mankind’s struggles with conceptualizing and enforcing the law and the slow pace we have made since the Magna Carta, we will probably begin to figure some parts of this puzzle out by the end of the next century.
But one thing that American Supreme Court justices outside of the Warren Court have proven beyond a shadow of a doubt, is that they use this King-like power for bad far more than they do for good, and the declining public opinion in the Court is a trend that mirrors the Roberts Court’s proven depravity. Get rid of American-style judicial review post-haste, if only to hear John Roberts whine some more about how unfair people are being to his small cabal of corrupt autocrats trying to make the world a worse place for everyone except his Supreme Court’s donors.