The oft-invoked appeal to Brown v. Board of Education (1954) as testament to the necessity of judicial supremacy is not entirely convincing. Brown overruled Plessy v. Ferguson (1896), affirming the legality of separate but (supposedly) equal public accommodation for Blacks and whites. But what the Court did in Brown in 1954 was at least as much a demonstration of Congress’s protection of minority rights as of the Court’s enforcement of those rights. The Court was applying 42 USC § 1983, a federal law passed by Congress during Reconstruction that provided the means for bringing provisions of the federal Constitution and laws to bear on state officials. Cases expanding autonomy, dignity, and privacy like Roe and Obergefell v. Hodges (2015), establishing a fundamental right to same-sex marriage, also depended entirely upon § 1983 to strike down intolerant state laws. As Bowie and Renan note, these decisions “don’t represent judicial supremacy, but rather Congress’s ability to make and enforce national constitutional commitments.”
I have been persuaded by their argument—one also made convincingly by Waldman—that any satisfactorily revised conception of the judiciary as a protector of rights, particularly the rights of those lacking wealth and power, cannot be content to focus on the Supreme Court but must call on Congress to intervene by enacting statutes that provide new federal judicial avenues for protecting rights from abuse by federal officials in the way that § 1983 does with respect to abuse by state officials. Congress can also intervene by overruling Supreme Court decisions interpreting ambiguous federal statutes in ways that gratuitously contravene egalitarian norms.
More active participation by the people’s elected representatives in reinforcing federal legal protections will naturally reinject fears about the “tyranny of the majority” into what has traditionally been a decidedly antimajoritarian process of defining the Constitution’s protections and even those codified in congressional statutes. But urging Congress and, for that matter, state lawmakers and elected state court judges and justices to be more involved in defining and defending basic rights need not mean that the federal judiciary in general, and the Supreme Court in particular, would cease to define the limits beyond which politicians are forbidden to go—a function that, of course, presupposes the selection of federal judges and justices committed to it. Nor must those advocating an enhanced responsibility for the legislative branch concede that Congress and the Court need always be at loggerheads. Instead, as Waldman explains, the point is only that Congress has a larger part to play in supporting American democracy.