Sources
Bowie, Nikolas, Written Statement of Nikolas Bowie to the Presidential Commission on the Supreme Court of the United States, June 30, 2021 (June 30, 2021). Harvard Public Law Working Paper 25-18, Available at SSRN: https://ssrn.com/abstract=5168441 or http://dx.doi.org/10.2139/ssrn.5168441
Wegman, Jesse. Sorry, Justices — the Constitution Doesn’t Belong to You. Brennan Center for Justice. September 8, 2026. https://www.brennancenter.org/our-work/analysis-opinion/sorry-justices-constitution-doesnt-belong-you
Immerwahr, Daniel. Has the Supreme Court Sandbagged Democracy? The New Yorker. August 31, 2026. https://www.newyorker.com/magazine/2026/09/07/supremacy-nikolas-bowie-daphna-renan-book-review
Bowie, Nikolas and Daphna Renan. Supremacy: How Rule by the Court Replaced Government by the People. 2026. https://bookshop.org/a/83711/9781324092803
Rose, Winfield. Marbury v Madison: How John Marshall Changed History by Misquoting the Constitution. Political Science & Politics. April 2003. https://d1wqtxts1xzle7.cloudfront.net/32409012/Document_4_Marburry_v_Madison-libre.pdf
Transcript
John Adams knew he had to move fast. He had lost his reelection bid in the election of 1800 and, as a lame duck president, he had limited time to protect his legacy and the power of his political party before the new president took over. As Congress tried to figure out whether Thomas Jefferson or Aaron Burr had officially won the presidency, Adams and his party were increasing the size of the judiciary, creating new official roles for judges, and packing the courts with as many federalists as possible. In the dayst before the newly named president Thomas Jefferson was to take over, Adams made some midnight appointments, signing dozens of new commission letters and sending them to his Secretary of State John Marshall to seal and deliver those commission letters to their respective federalist judgeship appointees. Many of those letters remained undelivered. When Thomas Jefferson took over and found the letters, he ordered his new secretary of state James Madison not to deliver them.
William Marbury was one of those people who never received his letter, and in an attempt to force Thomas Jefferson to follow through on delivering the commission letter, Marbury petitioned straight to the US Supreme Court, asking the court to issue a writ of mandamus to force the fulfillment of the commission.
Now this put the court in a bit of a predicament. The Chief Justice of the Court was John Marshall. Yes the same John Marshall who was also the secretary of state that sealed the commission letters and then failed to deliver them. The same John Marshall who was also a distant cousin of Thomas Jefferson. Messy. Marshall should have recused himself from the case but at that point in US history, recusal wasn’t really well established unless the judge had a financial stake in the matter. And anyway with a little judicial maneuvering, this case actually presented John Marshall with the greatest power grab in the history of the republic.
In the early 1800s, the Supreme Court did not hold the level of respect and power that it does today. It didn’t even have its own building, judges were forced to do their work in the basement of the capitol building. During its earliest years, the Supreme Court judges were forced to ride circuit, traveling from colony to colony to hear cases. It was such a pain in the ass, thankless job that a lot of people didn’t even want it. But in the Marbury v Madison case, chief justice John Marshall saw an opportunity. He was in quite a pickle, though. If he chose to rule in favor of Madison and refuse to issue a writ of mandamus, that would be seen as the judiciary branch bending the knee to the executive branch. If he ruled in favor of Marshall and forced Madison to deliver the commission, Jefferson could just ignore the court’s ruling and there wasn’t much the court could do about that. In both instances, the power of the court would be embarrassingly diminished. So Marshall chose a third, secret, and, it turns out, mostly made up option.
AD
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In laying out the Marbury v Madison decision, Chief Justice John Marshall said, actually the Supreme Court doesn’t have the power to issue the requested writ of mandamus because that power was given to the Court by the Judiciary Act of 1789 and that act of Congress is actually unconstitutional.
In making the claim that this congressional act was unconstitutional, Marshall achieved two things: one is he managed to sidestep the potential power imbalance if the president of the United States refused to follow a court order and two he wildly expanded the Supreme Courts power by establishing a brand new job for it: the right to determine whether Congressionally-passed laws are constitutional or not. He said hear ye hear ye I declare we get to say what is or isn’t constitutional and there’s nothing the Congress can do. We get the ultimate say and if we determine that the Congress has passed a law that isn’t constitutional, we get to shoot it down, it becomes unenforceable and, in effect, the only way to remedy our final say is by rewriting the constitution.
The reason I say this power is made up is because nowhere does the constitution itself give the Supreme Court this power. And, in fact, in determining the constitutionality of the federal law he was invalidating, Chief Justice John Marshall blatantly and, some argue, intentionally MISQUOTED the constitution itself. He rearranged entire clauses as he quoted it, and omitted a key phrase that actually explicitly contradicted what he was saying, a phrase written into the constitution that gives CONGRESS the right to pass exceptions and regulations to the Supreme Court’s jurisdiction. That is, the constitution explicitly says Congress has control over the Supreme Court, and no where does it explicitly say that the Supreme Court has the right to determine whether Congressionally passed laws are constitutional.
Based on this one misinterpretation and power grab by a single Chief Justice, the Supreme Court has gone on to grow power, influence, and a stranglehold over US democracy that would be unrecognizable when the court was in its infancy. The power of the Supreme Court to interpret whether federal laws are constitutional and to strike down laws passed by Congress is entirely made up by the Supreme Court itself in a decision from over 200 years ago that purposely misquoted the Constitution. And the disastrous results for our democracy are very clearly on display today.
Here’s how I learned about the role of the Supreme Court in law school: in the United States there are three branches of government: the executive made up of the president, cabinet, agencies, etc.; the legislative branch, made up of congress; and the judicial branch made up of the supreme court, the appellate courts, and the district courts. Between those coequal branches of government they provide checks and balances so no one branch becomes too powerful. Congress writes the laws, the President makes sure the laws are faithfully executed, and the courts, led by the Supreme Court, determine not only what the laws say but what the constitution means. Now I vaguely remember my constitutional law professor presenting Marbury vs Madison to us with a critical lens but this was like week one of law school, a period of my life that is incredibly hazy. For the most part in my legal education, the general tenet that the Supreme Court is the ultimate arbiter of what the constitution says and, therefore, whether a Congressional law is or isn’t constitutional, was presented as a hard and fast fact, an immutable property of the universe. But it turns out that’s not necessarily true, based on the power given to Congress and the Supreme Court in the constitution, and people have been questioning that power ever since John Marshall declared it so back in 1803.
There’s a new book out by Harvard law scholars Nikolas Bowie and Daphna Renan called Supremacy: How Rule by the Court Replaced Government by the People, that lays out this history and makes a really compelling argument for how the growth of this power in the Supreme Court is dramatically undermining our democracy. It puts words to what I and I know a lot of you have been feeling lately: why the fuck are my rights and the will of literally HUNDREDS of democratically elected officials being stripped away by 5 ivy league nerds in robes? Surely this can’t be the democracy I was promised in school?
The Supremacy book calls this “judicial supremacy”--the idea that once the Supreme Court weighs in, that’s what the Constitution means, there’s nothing that can change that short of changing the text of the constitution. They pit that concept against the concept of ‘democratic constitutionalism’--the idea that Congress is actually the best determiner of what the constitution means, not the courts. That the most democratic ideal is putting the interpretation of the peoples’ document in the hands of the people via their elected representatives in Congress, and not in the hands of a few elite unelected judges with lifetime tenure.
And this isn’t a new concept, Frederick Douglass was part of a group that believed in democratic constitutionalism–that the constitution isn’t doomed to be interpreted as a pro-slavery document forever, that it was something that could be, and should be, reinterpreted democratically. And this idea goes along with the concept of originalism as a psyop which I discussed in a recent video–originalism is based on a cherry picking of history and is inherently antidemocratic–because why are we allowing old white racist misogynists from 250 years ago dictate how we should run our country in the year of our lord 2026? Should it not be up to the people currently alive and actively making up the electorate of this country to determine how to interpret our guiding text?
And the reason Frederick Douglass was talking about this is because the first true exercise of the newly established judicial supremacy of the Supreme Court wasn’t until the 1857 Dred Scott decision. Not off to a great start. In that opinion, the Supreme Court gutted a law, passed by Congress and signed into law by the president, so approved by the 2 other branches, that banned slavery in the new territories. The court said nah actually we say the constitution bars black people from ever being citizens and it was a violation of slaveholders’ due process rights to deprive them of their human property without due process. It was an exercise of power so evil and misguided that it helped spur a civil war. And it was indicative of what was to come as the Supreme Court spread its wings and leaned into its newfound judicial supremacy.
After the Civil War, Congress passed the Reconstruction Amendments, 13, 14, and 15, banning slavery (unless you’re a prisoner); guaranteeing due process rights for everyone; and expanding the vote to black men; and giving Congress the right to pass laws to effect those changes. Almost as soon as those amendments were passed, the Southern States began pushing for the Supreme Court to weaponize them to check congress and protect their white supremacy. They literally called it white supremacy too they explicitly said they wanted the Supreme Court to reinforce white supremacy. And sure enough, the Supreme Court worked systematically to protect the rights of former enslavers and private property over the rights of the formerly enslaved. By 1900, the Supreme Court had undone nearly every major law passed by Congress to protect multiracial democracy in the south, including in the misleadingly named Civil Rights Cases from the 1880s, in which the Supreme Court gutted protections for formerly enslaved people that Congress had democratically passed.
And in the 20th century, they turned that growing power onto other groups that threatened the white supremacist, capitalist status quo. Labor unions. Farmers. Limits to child labor. Income taxes (that was actually 1895), minimum wage, anti-trust laws. Time and again, the court used its power not to protect the subjugated minority from the tyranny of the majority, but to protect the elite, wealthy, monied minority from being checked by laws passed by a democratically elected Congress.
By the end of the New Deal era, FDR had managed to appoint the majority of Supreme Court justices, and the progressive Warren Court came into power in the 1950s. Counterintuitively, it was the Warren court and its many progressive decisions that helped solidify the idea of judicial supremacy as an immutable law of the land in the United States, because the court was finally making decisions that progressives agreed with. The court was finally fulfilling its duty of being a check on the tyranny of the majority by protecting actually oppressed minorities, not the wealthy elites who felt oppressed by progressive policies. This helped legitimize the power of the court in the eyes of the left after so many decades of the court seeming to only enforce the rights of the conservative wealthy elites.
However, discussion of the Warren court brings us to a really important concept that the Supremacy book lays out, that was commonly discussed in the early history of the Supreme Court but has fallen by the wayside as judicial supremacy has taken hold, and that’s the idea of horizontal judicial review versus vertical judicial review. Vertical judicial review is the federal court’s ability to check the power of the states. Under the United States model of federalism, and per the US constitution, federal law trumps state law. So if federal law says something and there’s a state law that says something else, it is the court’s job to step in and enforce the federal law upon the states. That’s vertical review, it’s coming from the feds down to the states. That’s in line with the constitution and less concerning for democracy because it is the democratically elected congress enacting these laws that are being enforced by the Supreme Court.
Horizontal judicial review, in contrast, is when the federal courts, the judiciary, are reviewing the activities of the other branches of the federal government, the executive branch and the legislative branch. That is where democratic principles can be stymied in the name of judicial supremacy. As I stated already, the constitution says that the legislature writes the laws and the president must take care that the laws be faithfully executed. So when the judiciary is reviewing the activity of presidents, it is within that constitutional framework for the supreme court to find, for example, that the president had violated federal law when enacting tariffs. The president’s job is not to write the law, it is to execute the law. Executive branch. Now Trump’s goons who espouse unitary executive theory would argue otherwise but as I’ve laid out in numerous other videos that theory is dumb and wrong and no intellectually serious person can actually believe in it, sorry.
So if the judiciary checks the president for violating federal law, that’s fine, but it’s more concerning when the judiciary steps in and says hey congress the law you wrote is against the constitution as we, 9 dweebs in robes, interpret it so we’re going to overrule all of you AND the president unless he tried to veto it, AND the people who elected you, and say that what we think is the supreme and final law of the land. That’s where there can be a really negative impact on democracy. Yes, the president is elected by the people, assuming they win the popular vote, but I would argue in weighing what we should be more concerned about, it should with a small number of people, especially unelected judges but even one single president, being able to overrule the will of the people as promoted by the Congress. And, again, Congress gets to write the laws, the president must enforce them as written.
Now the calculation as to whether or not this is good for democracy changes when you’re talking about the Supreme Court ENFORCING federal laws against the states or against individuals. Then you have the judiciary working to promote the will of the people through their democratically elected officials and we’re less concerned there as well with the implications for democracy. So it’s really this small sliver of Supreme Court decisions that we’re most concerned with–the ones wherein the Supreme Court invalidates federal law and says it’s unconstitutional and unenforceable. Even though those types of rulings only make up about 12% of Supreme Court decisions, they have deeply important wide ranging impacts. For example, Citizens United was a case in which Congress attempted to legislate to prevent money from infecting politics and the Supreme Court stepped in and said actually under our interpretation of the constitution, money is speech and corporations are people so the first amendment protects their right to spend as much money as they want to influence elections. And because of judicial supremacy we have been stuck with that decision ever since, to the detriment of the foundations of our government and democracy, because the only way to overrule the Supreme Court is via a constitutional amendment which is a nearly impossible task we’ve only managed to accomplish 17 times in 250 years, if you don’t include the bill of rights.
Now proponents of the idea of judicial supremacy may argue well aren’t the Supreme Court justices legal experts, are they not the ones who are better suited to understand what the constitution says than Congress? And to that I say that is where you have been misled, my friend. Let me explain.
Yes it’s true that present-day Supreme Court justices have law degrees (though not all have actually had law degrees) and have practiced law for a number of years, often though not always serving as lower court judges before being nominated, sometimes even serving as clerks to other Supreme Court justices before themselves becoming a justice. Which means they may or may not, it’s not a requirement, have experience as judges by the time they take their seat at the Supreme Court bench. So they know how to be judges. And they may even be incredibly smart. In the current Supreme Court, four justices are Harvard law graduates, 4 justices are Yale law graduates, and one, Amy Coney Barrett, went to Notre Dame Law School. As the author of the Supremacy book, Nikolas Bowie, himself a Harvard law professor, once told a Congressional hearing, quote “nothing about a Harvard education transforms someone with bad judgment into someone with good judgment.” As we’ve learned time and again, most recently with the Cornell 57, attending an Ivy League does not imbue someone with better judgment or indeed more intelligence than the rest of us, it just imbues them with a piece of paper and a lifelong superiority complex. And being a judge doesn’t make you an expert on constitutional law. Indeed, Obama was a constitutional law professor before becoming the president. And the legislature is made up of tons of lawyers. And has many lawyers in its employ advising them on the drafting of legislation. To say that these 9 people who have been hand chosen by partisan administrations not for their strict adherence to impartiality but BECAUSE those administrations believed the justices would find in ways that supported their partisan politics, who are in place for life and do not have to answer to the people are the ultimate and only interpreters of the constitution, which is a document that is legible to anyone who wishes to read it, I promise it’s not that complex, it's just often vague, is to say that they, the Supreme Court, and more often than not 5 of the 9 judges, so 5 dweebs in robes, should be able to overrule the hundreds of members of Congress and the president who signed the law, all of whom believed the law to conform to the constitution, all of whom have taken oaths to protect and uphold the constitution, and that the people have absolutely no recourse as to the decision of these 5 dweebs in robes other than literally rewriting our founding document, is inherently antidemocratic.
And this is of course NOT to say that Congress always gets it right. Time and again Congress has proven itself willing to do absolutely heinous things, from indian removal to japanese internment camps to guantanamo bay. But as opposed to a judicial supremacy system wherein the say of 9 unelected judges reins supreme and cannot be overcome versus a Congress that can be voted out of office, I’d still rather the power be in the hands of a Congress that, at least in theory, is answerable to the will of the people.
NOW this all may be true but when applied to the current American government as it is functioning or not functioning this idea that judicial supremacy is bunk starts to have some concerning implications. FIRST let me say that judicial supremacy helped get us into this hell hole to begin with–again Citizens United struck down congressional legislation aimed at keeping money out of politics and the resulting onslaught of monied interests influencing every aspect of the US government has made Congress all the less democratic. The democratically elected people sitting in Congress have only gotten there because of their ability to raise money and their willingness to sell out to monied interests and therefore the will of the people is not accurately represented by Congress at this juncture. Also the idea of democratic constitutionalism requires Congress to actually give a shit about following the constitution and passing actual laws, neither of which it is interested in doing lately under this Republican leadership. That is, in part, due TO judicial supremacy again–Congress won’t pass laws it thinks the Supreme Court will just strike down, and it won’t pass laws it thinks the President won’t like because it's unclear whether the Supreme Court would enforce their laws if Trump attempted to thwart them, so far it has gone back and forth on the whole “faithfully executed” part of the Trump’s duties as president. And of course the entire Republican party is beholden to Trump because he holds the keys to their re-election, a negative word from him and they become dead in the water. This is also due in part to our out of control campaign financing that places money above all else when it comes to getting re-elected. So since we have a tyrannical president and a Congress unwilling to do anything about it, the Supreme Court, for better or for worse, has become the final entity willing to occasionally stand up to Trump.
So is this the correct time to be questioning their power of judicial review? Well this is I think where midterms come in. Because a Congress actually willing to enact change could pass laws challenging judicial supremacy and restoring some sense of democracy. It’s unclear how this would play out because it’s never been done. But Congress could pass a law simply saying that the Supreme Court does not have jurisdiction to invalidate federal laws. There’s nothing in the constitution that says they can’t. Yes the court could try to invalidate the law against its judicial supremacy by saying no we have judicial supremacy. But then they’d have to point to where in the Constitution it says that, which they would be hard pressed to do unless they intentionally misquote it like John Marshall did all those centuries ago. Congress could pass laws and, within the law, say that the Supreme Court does not have the jurisdiction to make rulings on this law. That is explicitly in the constitution as a power that Congress has. So Congress could pass a law curtailing the role money plays in politics and explicitly say within the law that the Supreme Court does not have jurisdiction to hear cases challenging this law. And Congress could set up some sort of system by which decisions by the Supreme Court can be overruled by a supermajority of Congress or by a referendum to the people. This would put the United States thoroughly in line with other modern democracies, many of which have some sort of mechanism by which they can challenge their supreme court holdings.
These changes aren’t silver bullets to fix all the ails of democracy or even of the Supreme Court in the US. They would have to come along with other INCREDIBLY realistic Supreme Court reform, like expanding the number of justices, creating term limits that rotate so every presidential term gets 2 nominations no matter what, and creating an enforceable code of ethics to check the corruption of a court that has proven itself time and again susceptible to accepting gifts as bribes, signing million dollar book deals, and being unwilling to recuse themselves when clear conflicts of interest come up. 9 dweebs in robes should not be allowed to simply police themselves and they should not have the power to overrule the will of the people. So even though things feel hopeless right now, I urge you to vote this November, if you haven’t already, and push your elected representatives to pass comprehensive Supreme Court reform to help curb the abuses of these tyrannical dweebs in robes.
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If you liked this video, you’ll like my video from Wednesday about why the French are protesting so hard right now!
