Written Statement of Nikolas Bowie to the Presidential Commission on the Supreme Court of the United States, June 30, 2021

Abstract

This testimony to President Joe Biden's Commission on the Supreme Court makes two arguments against the U.S. Supreme Court's power to invalidate federal legislation. First, as a matter of historical practice, the Court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status. Second, as a matter of political theory, the Court’s exercise of its review undermines the value that distinguishes democracy as an ideal form of government: its pursuit of political equality. Both arguments compete with counterarguments that its power is necessary to preserve the political equality of so-called discrete and insular minorities. But even accepting that the political equality of all Americans should be protected, the justification for the Court's power is not persuasive as a matter of practice or theory.

Keywords: judicial supremacy, constitutional law, supreme court