The Supreme Court’s Power Is Based on the Lie of Its Supremacy - The American Prospect

This article appears in the October 2026 issue of The American Prospect magazine. If you’d like to receive our next issue in your mailbox, please subscribe here.

Any search for the chief enabler of Donald Trump’s corruption and subversion of American democracy really must lead to one and only one place: the Supreme Court. The reactionary majority, led by Chief Justice John Roberts, has repeatedly bailed Trump out from his many prosecutions, enabled his wildly lawless trampling over the basic appropriations process, and—in what is for my money the worst Court decision in American history, Trump v. U.S.—explicitly immunized him from being prosecuted for breaking, in effect, any law.

Supremacy: How Rule by the Court Replaced Government by the People

By Nikolas Bowie and Daphna Renan

W.W. Norton

Yet despite that, many Trump critics still balk at proposals to attack the Court’s power head-on. At a recent conference about liberalism in the 21st century, when asked about Court reform, Bob Bauer, former White House counsel for President Obama, warned that “You don’t respond to norm breaking by breaking more norms.” The anti-Trump conservative writer David French said: “Court packing will lead to the dissolution of the republic.”

After Trump v. U.S., President Biden himself published an op-ed arguing for a set of frankly pitiful reforms. A binding ethics code and term limits would be welcome, albeit inadequate. But proposing a constitutional amendment stipulating that the president can’t break the law is both practically impossible and tacitly endorses the idea that once the Court has spoken, no matter how outrageous its decision, the only recourse is to amend the Constitution.

The Supreme Court question is crying out for some way to lever American voters and elites alike out of this learned helplessness. One solution can be found in the pages of Supremacy: How Rule by the Court Replaced Government by the People, by Harvard Law professors Nikolas Bowie and Daphna Renan. They demonstrate beyond any question that the Constitution was not meant to establish a system of judicial supremacy in which the Court exercises dictatorial powers. Previous members of Congress and justices alike have taken for granted that Congress can override the Court’s judgment about constitutional interpretation, and on many occasions it has done so.

Every American, and particularly every Democratic voter, member of Congress, or candidate for office, must read this book.

Bowie and Renan ably run through the story of how the Supreme Court’s power has ebbed and flowed over the years, from the days of John Marshall, up through Roger B. Taney’s attempt to settle the question of slavery with Dred Scott v. Sandford, the curtailing of civil rights and economic regulations in the Gilded Age, the brief defense of civil rights under Earl Warren, the crypto white supremacy of William Rehnquist, and the open white supremacy and corrupt authoritarianism of John Roberts.

By now, this is familiar history to any Court critic, particularly because—aside from a brief exception in the mid-20th century—the Court has been a reliable ally of violent racism and ruthless corporate exploitation. “There is only one minority that the Court has consistently protected from Congress: the wealthy,” they write.

However, the authors also excavate some obscure history that was new to me. The most important fact they establish is that the traditional narrative of Marbury v. Madison—the decision that supposedly established judicial supremacy in the United States, as taught in high schools across the country—is an invented tradition.

The decision came down in 1803, after two elections in which Thomas Jefferson’s Democratic-Republicans had swept the Federalists out of power. The Federalists had attempted to barricade themselves in the judiciary, but after some congressional debate explicitly about judicial supremacy, the Democratic-Republicans rooted the Federalists out. In 1802, they abolished the courts the Federalists had set up, set various limits on judicial power, and blocked the Supreme Court from meeting for an entire year to keep them from meddling.

Marbury itself was based on an obvious mistake (Marbury should not have been allowed to file his case directly in the Supreme Court), had no practical effect whatsoever, and was quickly forgotten. It was a parting shot from a whipped Court that “had no interest in being further disciplined by Congress,” Bowie and Renan write. When it did rule on the core of the 1802 reforms, the Court let them stand. Marbury’s author, Chief Justice John Marshall, “would spend the rest of his career explicitly deferring to Congress’s understanding of its constitutional powers.”

The decision that actually attempted to establish judicial supremacy over Congress was the infamous Dred Scott. Unlike Marbury, this was a decision on a highly controversial topic, and was entirely intended to end all civil rights for Black people, slave or free, and to overturn the Missouri Compromise, which had limited the extension of slavery.

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For defenders of judicial supremacy, a biliously racist decision that did more than anything else to touch off the Civil War is an inconvenient foundation on which to build a movement. So, led by Justice David Brewer in the 1890s—in the midst of Court rulings striking down civil rights protections, child labor laws, and minimum-wage standards—they dug up Marbury, dusted it off, and cited it as “conclusive evidence that all Americans once believed the Constitution itself justified horizontal review.” The American Bar Association joined in with a “John Marshall Day” in 1901, celebrated at the Capitol Building and in 37 states. It was a farce.

A similar aspect of Court history that Bowie and Renan make clear is that judicial supremacy has never been some principled exercise in the application of constitutional scruples. It has always had a heavy dose of grubby political wheeling and dealing in which the Constitution can be ignored as needed. Justice John Catron, for instance, got President-elect Buchanan to talk his fellow Pennsylvanian, Justice Robert Grier, into joining Dred Scott so that it wasn’t only Southerners in the majority.

Later, the Court could only start striking down Reconstruction-era civil rights laws—based as always on hyper-tendentious misreadings of the extremely clear Reconstruction Amendments—because a conservative faction of the Republican Party found it convenient. For their part, so-called Liberal Republicans, increasingly racist and aligned with capitalist business owners, calculated after losing several elections that the Court was the best way to protect the wealthy from taxes, regulations, and unions.

And the Court has never been grubbier than it is today. I used to argue that Santa Clara County v. Southern Pacific Railroad Co. was one of the worst decisions in Court history because it did not even attempt to explain its holding granting civil rights to corporations. Today, with its “shadow docket,” the Roberts Court has institutionalized that practice, both eclipsing and routinizing those earlier decisions that had provided rulings without justification.

Perceived political advantage also explains how support for judicial supremacy has flipped back and forth over the years. Progressives and liberals have opposed it when reactionaries were in the majority, while reactionaries opposed it in the brief period when liberals had the upper hand. The problem today is that liberals have not yet returned to what should be their rightful place among judicial supremacy’s critics, alongside past reformers like Franklin Roosevelt and Frederick Douglass.

BOWIE AND RENAN ALSO RESURRECT an important