Joe Biden

Nicholas Goldberg, Tribune News Service

Is it time for a dramatic change in the way the Supreme Court does business?

No one really expected that question from the new 36-member commission President Joe Biden established in April to study potential court reforms. He created it to fulfill a campaign promise, but most people assumed it would focus its sights on relatively limited proposals, such as whether terms limits should be imposed on Supreme Court justices and whether the number of justices on the court should be increased.

But instead, at its first public meeting on June 30, the commission came roaring into life determined to raise a bigger, broader and even more controversial subject: Does the Supreme Court wield disproportionate power that needs curtailing?

In particular, the commission zeroed in on what’s known as “judicial review,” the awesome power the nine justices of the court have to strike down laws passed by Congress or the states if they’re deemed to conflict with the US Constitution.

I hadn’t even realized that subject was open for discussion. I was wrong.

“The Supreme Court is an anti-democratic institution,” said Nikolas Bowie, an assistant professor of law at Harvard Law School, in powerful testimony to the commission. He argued that the court had a long history of invalidating laws designed to expand political equality and had been “silent at best” on the dispossession of Native tribes, the exclusion of Chinese immigrants and the persecution of political dissidents, among other subjects.

Bowie said it would be good to do away with the power of judicial review.

Samuel Moyn, a Yale Law School professor, also criticized judicial review, and proposed various reforms to weaken it. “Constitutional law is now more openly ‘politics by other means’ than some once believed or hoped,” Moyn said.

To non-lawyers, this stuff can sound like legalistic mumbo-jumbo. But over the years, the Supreme Court has dramatically shaped the direction of the country — for good or ill, depending on your perspective — by striking down scores of federal, state and local laws. In many cases, these laws were passed by Congress, signed by the president and supported by American voters, only to be overturned by nine unelected justices — or, in the case of a split decision, by as few as five.

In the infamous Dred Scott case in 1857, the court struck down the entire Missouri Compromise — Congress’ attempt to prevent the spread of slavery into new territories — as unconstitutional. In 1905, the court overturned a New York law that set a maximum 10-hour workday for employees. In 1954’s Brown vs. Board of Education, the court ruled that laws permitting school segregation violated the Constitution’s promise of equal protection.

More recently, the court has struck down state laws banning homosexual conduct and same-sex marriage.  In the Citizens United case, the court threw out campaign finance restrictions it said violated the 1st Amendment, thereby opening the door for unlimited political expenditures by corporations. In 2013, it tossed a critical section of the Voting Rights Act that protected voters from racial discrimination.

And who gave the court this extraordinary power? The founders? The Constitution? God?

Actually, none of the above. The Constitution says very little, it turns out, about the Supreme Court, other than that there shall be one.

Basically, the justices took the power of judicial review for themselves in 1803 in a famous case called Marbury vs. Madison, which arose from a dispute between John Adams and Thomas Jefferson over presidential appointments. In a unanimous opinion, the court struck down a section of law passed by Congress for the first time, and Chief Justice John Marshall set the high court on a path to become the supreme, final arbiter of which laws violate the US Constitution.

Some people think judicial review is great as a check on legislative overreach. Some find it undemocratic because it usurps power that belongs with the other two branches of government.