Abolish Judicial Review! Demand a Democratic Constitution Now!
Luke Pickrell and Lucas De Hart argue that power should be removed from the Supreme Court and held by the people's representatives
The Supreme Court’s term ended with a salvo of decisions. In Garland v. Cargill, the Court used an Urban Dictionary and wikiHow-like argument to claim that the Department of Justice erred in banning bump stocks. Ten days later, the U.S. Surgeon General declared gun violence a public health emergency. In Ohio v. Environmental Protection Agency, the Court said the Environmental Protection Agency’s Good Neighbor Plan would cause “irreparable harm” to several states. In Chevron v. Natural Resources Defense Council, the Court overruled a landmark 1984 decision that required courts to defer to regulatory agency’s interpretations of statutes when the law was ambiguous. Now gone, the so-called Chevron Doctrine had been “applied in thousands of judicial decisions” and “become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest,” said Justice Elena Kagan in her dissent. In City of Grants Pass v. Johnson, the Court ruled that “prohibiting people who are homeless from using blankets, pillows, or cardboard boxes for protection from the elements while sleeping within the city limits” does not violate the Constitution’s ban on cruel and unusual punishment. Sara Rankin, a Seattle University law professor and director of the Homeless Rights Advocacy Project, called the decision “terrifying,” “dystopian,” and “quite possibly the most consequential decision in history up until this point relating to homeless rights.”
The Justices saved their most significant decision for the last day. In Trump v. United States, the Court ruled that the former President has “presumptive immunity from prosecution for all his official acts.” Since everything done with the executive branch can be considered an official act, the President can now legally use the DOJ to target political opponents, deploy the military to assassinate rivals and execute a coup, or take bribes. Name anything; as long as the President does it in office, it’s legal. As the co-hosts of the 5-4 Podcast explained, “The presidency is like a gun…Why do you wanna shoot it? It doesn't matter, it's your gun. The only thing that matters is that it's your gun.”
Joe Biden responded to the Court’s ruling: "The power of the [President] will no longer be constrained by the law, even including the Supreme Court of the United States.” He acknowledged that the decision “continued the Court’s attack in recent years on a wide range of long-established legal principles in our nation, from gutting voting rights and civil rights to taking away a woman’s right to choose to today’s decision that undermines the rule of law of this nation.” Still, by way of a “solution,” Biden urged Americans to take to the polls in November and use their votes to “decide if Trump’s embrace of violence to preserve his power is acceptable.” Of course, Biden knows that the Constitution doesn’t allow Americans to have a direct say in who becomes President. The Electoral College is ever-present, and as Daniel Lazare pointed out regarding the Sotomayor-Jackson opinions, two of the last four presidents took office after losing the popular vote. Biden and the Democrats continue pretending the U.S. is a democracy and insist on defending the existing Constitution on that fraudulent basis.
In reality, the Constitution isn’t democratic. In fact, the Constitution undermines any advancement toward democracy by allowing intuitions like the Senate and Supreme Court to empower Trump’s far-right agenda. Instead of living in fantasy land, Biden could use the bully pulpit to critique the Constitution's structural provisions. Instead, he and his party are busy fearmongering around Trump in an inevitably doomed attempt to preserve a crumbling system. If Biden believed in democracy, he would demand a democratic constitution.
Judicial review is not in the Constitution. Federal courts (whose judges are unelected per Article 3 of the Constitution) gained the power to review legislation and judge constitutionality as a result of the 1803 case Marbury v. Madison. In that case, the Supreme Court ruled that the provision of the Judiciary Act of 1789 enabling William Marbury to bring a claim to the Supreme Court was unconstitutional (Marbury, the Justice of the Peace in the District of Columbia, had petitioned the Court to compel the new Secretary of State, James Madison, to deliver a memorandum issuing new circuit judges and justices of the peace after the defeat of President John Adams). John Marshall, the first Chief Justice, penned the majority opinion. Marshall further reasoned that the Constitution inherently established judicial review, writing that “[T]he theory of every such government must be, that an act of the legislature, repugnant to the Constitution, is void,” and “It is emphatically the province and duty of the judicial department to say what the law is.” Congress has never passed a law or constitutional amendment validating judicial review. Two presidents — Andrew Jackson and Abraham Lincoln — ignored important Supreme Court decisions (Worcester v. Georgia and Dred Scott v. Sanford, respectively). Still, judicial review quickly became normalized following Marbury v. Madison. Over time, Congress has become increasingly disinterested in meaningful legislative activity under the assumption that federal courts will review all of their decisions and determine constitutionality. As a result, decisions of life and death are made by as many as nine and as few as five unelected Justices.
The Democratic Constitution Blog has consistently argued that the Supreme Court is an undemocratic institution that lacks any semblance of legitimacy regardless of who sits on the bench or how the Justices rule. A binding interpretation by unelected officials on the validity of a law is absurd and illegitimate. A “progressive” Supreme Court is still an unaccountable and minoritarian check. A kind master is still a master. The demands in the Socialist Party of America’s 1912 platform are strikingly relevant: end judicial review, eliminate federal district courts and the circuit court of appeals, and make all judges electable and subject to short terms. Unfortunately, the demands in DSA’s 2021 Political Platform — “Supreme Court term limits and additional seats to break the countermajoritarian conservative majority” — fall short of what’s needed. Legislative power should be removed from the Court and placed in a unicameral legislature elected by universal and equal suffrage and holding unimpeded authority. The people’s body should make the laws and have the final say, not the Supreme Court. It’s time for a democratic constitution.
Luke Pickrell is the lead writer and editor of the Democratic Constitution Blog, and Lucas De Hart is its founder and editor. Both are members of Marxist Unity Group, a caucus in Democratic Socialists of America.