Full Breakdown
Supreme Court’s Judicial Review Under Scrutiny: New Book Challenges Its Democratic Legitimacy
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Core Argument of *Supremacy*
In *Supremacy: How Rule by the Court Replaced Government by the People* (W. W. Norton & Company, 2026), Harvard Law School professors Nikolas Bowie and Daphna Renan argue that the Supreme Court’s power of horizontal judicial review—refusing enforcement of federal statutes—conflicts with the Constitution’s republican foundations. They contend the Court has weaponized this power for “antidemocratic, illiberal ends,” tracing the pattern from the mid-19th century to the present. The authors distinguish this from vertical review of state laws, noting that cases like *Brown v. Board of Education* misdirect criticism toward a “strawman” that does not address federal-law review.
Historical Foundations of Judicial Review
Bowie and Renan trace judicial supremacy to the Civil War era. President-elect James Buchanan lobbied the Court over *Dred Scott v. Sandford* (1857), framing slavery as a “judicial question.” During Reconstruction, the Court struck down the Civil Rights Act of 1875, paving the way for segregation.
Modern Implications and Reform Proposals
Bowie and Renan argue that contemporary progressive leaders have “folded” on judicial review, citing debates over a hypothetical federal abortion ban. They link this retreat to the right-wing legal movement’s success in reshaping the Court, culminating in the recent dismantling of the Voting Rights Act of 1965’s remaining protections.
Third Way’s policy memo echoes concerns about the Court’s legitimacy, noting that the Supreme Court’s approval rating has “steadily plummeted” and that the Constitution grants Congress broad authority to set the Court’s parameters. The memo cites Chief Justice John Roberts’ admission that “clear and unequivocal language” in the Constitution supports congressional power to regulate the judiciary.
Public Attitudes Toward Court Reform
A Brennan Center for Justice report finds 73 % of respondents support imposing term limits on Supreme Court justices. A 2024 Fox News poll reports 78 % favor term limits, with growing Republican backing since 2022. The memo highlights that the United States is the only modern constitutional democracy that grants life tenure to federal judges, contrasting this with the global norm of fixed judicial terms.
Official Statements & Responses
- Chief Justice John Roberts (as quoted in the Third Way memo) acknowledges that the Constitution’s “clear and unequivocal language” underpins congressional authority over the judiciary.
- Congressional proponents cite the Judiciary Act of 1789 as the basis for legislative control of the Court’s size and jurisdiction, noting the last structural change occurred in 1911.
What’s Next
Third Way recommends that Congress enact an eighteen-year term limit for active Supreme Court service, after which justices would shift to senior status and hear only original-jurisdiction cases. Legislation proposing such limits has been introduced in both chambers. If enacted, the reform would create a predictable rotation of two new justices each presidential term, potentially reducing the politicization of appointments.
The release of *Supremacy* on October 1, 2026 adds scholarly weight to debates about the balance between judicial power and democratic governance, reinforcing calls for structural reforms that align the Court more closely with constitutional and public expectations.