Nikolas Bowie, Written Statement of Nikolas Bowie to the Presidential Commission on the Supreme Court of the United States, June 30, 2021 (Harvard Public Law Working Paper 25-18, 2025).
Abstract: This testimony to President Joe Biden's Commission on the Supreme Court makes two arguments against the U.S. Supreme Court's power to invalidate federal legislation. First, as a matter of historical practice, the Court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status. Second, as a matter of political theory, the Court’s exercise of its review undermines the value that distinguishes democracy as an ideal form of government: its pursuit of political equality. Both arguments compete with counterarguments that its power is necessary to preserve the political equality of so-called discrete and insular minorities. But even accepting that the political equality of all Americans should be protected, the justification for the Court's power is not persuasive as a matter of practice or theory.