We Need To Talk About Judicial Review

Leah Litman (0:00)

Strict Scrutiny is brought to you by Americans United for Separation of Church and State. It's back to school season, and this year, five million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom forcing their religion on every kid in those schools.

28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court. And they need you to amplify their voices before the Supreme Court gets its hands on this case. And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this.

Nikolas Bowie (0:40)

They're going to go up, but we're going to fight to get them taken down.

Leah Litman (0:45)

That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian. And their kids are in Texas public schools. The story they tell in this video is moving. And we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies, like these Ten Commandments laws and the decisions of Supreme Court hands down. Every child deserves access to public education, where they aren't subject to state-imposed religion or religious instruction or coercion. Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion.

Visit au.org.

To learn more about this case and how you can help join the fight to protect church-state separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back.

Nikolas Bowie (1:48)

Thank you.

Daphna Renan (1:49)

There's no chance to beautiful ladies like this.

Nikolas Bowie (1:51)

They're going to have the last word.

Leah Litman (1:54)

She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Hi, everyone. I'm here with Niko Bowie and Daphna Renan, professors at Harvard Law School and the authors of the great new book, Supremacy, How Rule by the Court Replaced Government by the People. Welcome back to Strict Scrutiny, Niko and Daphna.

Nikolas Bowie (2:37)

Thanks for having us.

Daphna Renan (2:38)

Thanks for having us.

Leah Litman (2:39)

I say welcome back, of course, because on our regular episode Monday, we had a conversation about your fabulous new book, Supremacy, and this is in some ways part two of that conversation, but styled as part of our hot Scodus Reform September series. Since you all literally just wrote the book on the topic, I wanted to speak with you about the Supreme Court Reform that is a key subject of your book, and that is what to do about the Supreme Court's power of judicial review, the court's power to decline to enforce a federal statute. So, ready to get started again?

Nikolas Bowie (3:10)

Yeah.

Leah Litman (3:11)

Awesome. Just a reminder to everyone, I love this book so much. We are doing a giveaway. It will run through tomorrow, Friday 5 Eastern. If you purchase the book, you can enter the giveaway, link in the show notes, upload a copy of your receipt, and get a T-shirt or a mug.

So, I will continue where we left off the conversation, which was we were talking about how in the period immediately before and after Dred Scott, judicial supremacy became embraced as a mechanism to further white supremacy, as the Supreme Court entered its Eric Cartman era, saying, I am the authority, and white supremacists were like, yes, you are, since you are on our side. So, I wanted to then ask you, what happened after that, after Dred Scott? Who comes to embrace these ideas of judicial supremacy, and who picks up on them and has continued to embrace them ever since? I realize those are big questions, but one of you can decide to tackle them first.

Nikolas Bowie (4:11)

So when the court decided Dred Scott, it was using a power that the Constitution doesn't refer to. It doesn't talk about it. Nothing gives the court the power to regulate Congress. But one thing that the opponents of slavery understood is that the Constitution gives Congress a lot of authority to regulate the court explicitly. And so when thinking about how do we abolish slavery or ban the spread of slavery when the Supreme Court is so hostile to our goal, the early Republicans, the people who founded the Republican Party, really drew upon all of the things the Constitution authorizes Congress to do.