Six Supreme Court Justices or We the People are Supreme

[David Lockmiller]

The following is a paragraph quotation from an editorial in today's New York Times by Harvard Law School Professors Nikolas Bowie and Daphna Renan. They are the authors of a forthcoming book “Supremacy: How Rule by the Court Replaced Government by the People.”

The presumption that laws passed by Congress are constitutional is an old idea, one the court itself once avowed. Even after 1803, when the court took the position in Marbury v. Madison that it had the power to disagree with Congress about the constitutionality of federal legislation, the court spent the next five decades deferring to Congress about the meaning of the Constitution. It was not until 1857 that the court attempted to override Congress’s constitutional judgment in a case, Dred Scott v. Sandford, that rejected Congress’s power to limit the spread of slavery. The court’s claim of supremacy inspired Abraham Lincoln to object that “if the policy of the government, upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers.”