Limit SCOTUS: Congress Should Pass the No Kings Act
The Supreme Court has grown too powerful. Congress can and should intervene to limit its overreach.
by Nikolas Bowie and Daphna Renan
Mr. Bowie and Ms. Renan are professors at Harvard Law School. They are the authors of the forthcoming book “Supremacy: How Rule by the Court Replaced Government by the People.”
The Supreme Court’s stunning decision this summer interpreting the Constitution to give presidents broad immunity from federal criminal laws is only the latest of its many opinions undermining Congress’s efforts to protect constitutional democracy, from its 19th-century invalidation of federal civil rights laws to its more recent curbing of the Voting Rights Act.
Today even Americans who decry these opinions largely accept the idea that the court should have the final say on what the Constitution means. But this idea of judicial supremacy has long been challenged. And the court’s immunity decision has set in motion an important effort in Congress to reassert the power of the legislative branch to reject the court’s interpretations of the Constitution and enact its own.
“Make no mistake about it: We have a very strong argument that Congress by statute can undo what the Supreme Court does,” Chuck Schumer, the Senate majority leader, said recently as he announced the introduction of the No Kings Act. The measure declares that it is Congress’s constitutional judgment that no president is immune from the criminal laws of the United States. It would strip the Supreme Court of jurisdiction to declare the No Kings Act unconstitutional. Any criminal actions against a president would be left in the hands of the lower federal courts. And these courts would be required to adopt a presumption that the No Kings Act is constitutional.
It might seem unusual for Congress to instruct federal courts how to interpret the Constitution. But the No Kings Act follows an admirable tradition, dating back to the earliest years of the United States, in which Congress has invoked its constitutional authority to ensure that the fundamental law of our democracy is determined by the people’s elected representatives rather than a handful of lifetime appointees accountable to no one.
Should the No Kings Act pass, it would take its place among a constellation of occasions when Congress protected its more democratic interpretation of the Constitution.
As Congress considers the No Kings Act, it should not just embrace the presumption that its laws are constitutional but also institutionalize it.
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.”
As the abolitionist Frederick Douglass explained, the presumption that federal laws are constitutional reflects the fact that a bill becomes law only after it has been debated and passed by Congress and considered and signed by the president — all of whom, like judges, take an oath to support the Constitution. As the national legislature makes national policy, it necessarily determines what kinds of laws are constitutionally appropriate. Some might disagree about the constitutionality of a law, but regular elections give voters a say among competing interpretations. Like many of his contemporaries, Douglass argued that any judge who attempts to defy such a statute should have “strong, irresistible and absolutely conclusive” reasons for doing so.
In recent years, however, the court has seemed particularly uninterested in forbearance, as five or six justices routinely upend Congress’s longstanding interpretations of the Constitution. For example, nearly 50 years after Congress and the president first decided that the Voting Rights Act of 1965 was appropriate legislation and after several more Congresses, presidents and Supreme Court majorities agreed that the law was constitutional, five justices in 2013 invalidated a crucial provision of the law.