‘We have to reject the idea that judicial supremacy is an essential ingredient of federal authority’
During an event celebrating her appointment as HLS’s Peter B. Munroe and Mary J. Munroe Professor of Law, Daphna Renan argues that “The judiciary should not always have the final word on the Constitution and issues important to Americans… Instead, she said, the U.S. should move toward a more political constitutionalism, which would wrest some of the power from the Supreme Court and share it with democratically elected bodies like Congress.”
In an earlier Atlantic piece that provides more detail, Renan wrote, “Congress must act, even if it means overriding the interpretations of the Court [“five oracles in robes'“] and reshaping its jurisdiction.”
Renan, along with fellow HLS Professor Nikolas Bowie and co-author of an upcoming book on the subject, argue for “a more political conception of the separation of powers” grounded in the idea of “federal authority…without judicial supremacy — that is, without the authority of the Supreme Court to have the final say on what the Constitution means or requires.”
Renan argues for a “constitutionalism that is messy, creative, contested, provisional, ‘porous’ in the sense of being moral-legal-political, not just legalistic…[serving as] a political means of building solidarity, and a site for constituting a national constitutional identity of equality and belonging.”
After giving an example of how the system will work, she summarizes that “courts have an important role to play, but they may not always have the last word”… “To build a better politics,” she argues, “we have to give the Supreme Court a little less control over what our polity can look like.”
Read the Article | Watch the event
Related:
The Supreme Court Is Not Supposed to Have This Much Power. And Congress should claw it back. (Atlantic, HLS Professors Nikolas Bowie and Daphna Renan, June 2022)
HLS in the World | A Conversation with Federal Judges About Federal Courts (Nov 2017)— video of event
