Don’t Blame the Court — Fix Congress: Why Judicial Reform Misses the Bigger Problem

Across much of the political Left there is growing disillusionment with the Supreme Court of the United States. That reaction, intensified after decades under Chief Justice John Roberts and a sustained 6–3 conservative majority, is understandable. But focusing primarily on the Court risks misdiagnosing the deeper constitutional and political problem: a legislative design that often privileges obstruction over action.

What Bowie and Renan Argue

Nikolas Bowie and Daphna Renan — Harvard law professors and former clerks to progressive justices — call for a different approach. They challenge the near-universal assumption that the Supreme Court must be the final arbiter of all constitutional disputes and promote what they call "democratic constitutionalism." Their central proposal is to curtail "horizontal" judicial review (the power to invalidate acts of Congress) while preserving "vertical" review of state and local laws.

Author's Critique

Their book is forceful and historically rich, but it risks exaggerating the Court’s role in producing the United States’ contemporary political impasse. The Court has at times frustrated progressive change — for example in Dred Scott (1857) and other nineteenth-century rulings — but many episodes of judicial intervention occurred in political contexts where elected branches had repeatedly deferred or failed to act. In short: power is frequently thrust upon the Court by politicians who prefer to offload hard choices.

Historical Dynamics

Bowie and Renan marshal important historical examples: the Dred Scott decision; the late nineteenth-century alignment between reactionary politics and the judiciary; clashes over New Deal legislation and Franklin D. Roosevelt’s court-packing plan; the 1954 Brown v. Board of Education decision; and the twentieth-century reliance by many on the federal judiciary to protect rights. They rightly note that Democrats’ confidence in the Court’s protection of abortion rights—especially after the 1973 decision and later developments—helped displace efforts to codify protections legislatively.

"The problem is not simply the Court: it is a constitutional structure that frequently rewards delay and obstruction in the legislature."

What the Broader Scholarship Shows

Political scientists going back to Robert Dahl have documented the Supreme Court’s responsiveness to public opinion and to the political branches. The Court depends on elected institutions to implement and enforce rulings; it lacks control of the purse and sword, as Alexander Hamilton observed in Federalist No. 78. Historically the Court has invalidated relatively few federal statutes compared with state and local laws and has often exercised deference to Congress in horizontal review.

Where the Current Court Actually Hurts Progressive Goals

The contemporary Roberts Court has made decisions that harm progressive objectives — notably in voting-rights doctrine, campaign finance, and constraints on the administrative state. Many recent rulings have limited state policies that help labor and public safety: decisions about public-sector union agency fees, property-takings doctrines used against union access, and state gun-safety laws are examples of harms produced through vertical review or anti-administrative-state reasoning. Limiting judicial review over acts of Congress would not remedy these concrete harms.

Why Congress, Not the Court, Deserves the Spotlight

The Framers designed a legislature that divides power between a majoritarian House and a deliberately insulated Senate. That structure makes federal lawmaking difficult. Other democracies confronted similar obstacles with institutional fixes; the United States has no easy mechanism to force synchronized renewal of both chambers or to overcome chronic Senate obstruction. As a result, many urgent reforms — universal health care, paid parental leave, living wages — have been stymied by congressional inaction, not judicial fiat.

What Progressives Should Do

If the goal is large-scale progressive reform, three pressure points matter most:

• Social Movements: Sustained grassroots pressure has historically compelled Congress to act (labor movements, civil-rights activism).
• The Presidency: A mobilized president can coordinate party action, set an agenda, and use rhetorical power to shift public opinion — think FDR’s era.
• State Innovation: Progressive federalism and state-level experimentation can produce policy models that spread and make national action politically feasible.

These levers are imperfect and sometimes uncomfortable to rely on, but they more directly address the root cause of policy stagnation than an institutional crusade to eliminate horizontal review.

Conclusion

Bowie and Renan offer a provocative corrective to judicial supremacy and remind us of the democratic costs of uncritical reliance on courts. But attacking horizontal review is a blunt instrument that risks diverting energy from the more difficult — and more necessary — task of reforming and pressuring Congress, strengthening popular politics, and using state and presidential power strategically. The pressing constitutional project for progressives should be to build the political capacity to translate public commitments into federal law.