JWI Deputy Director Garrett Snedeker and affiliated scholar Josh Hammer published in Newsweek, arguing that the recent Supreme Court decision, Bostock V. Clayton County Georgia, shows just how mistaken a jurisprudence without natural law can be. They propose a restoration of what they call the “original understanding of constitutionality” as a conversation between all three branches of the U.S. government and not just the Supreme Court. Snedeker and Hammer argue against “Judicial Supremacy” (the idea that the Supreme Court is the ultimate and final authority on constitutionality) for a more flexible and traditional notion of “Judicial Review.” Undue deference to the Supreme Court by the other two branches of government was not what the Founders envisioned. Snedeker and Hammer articulate a vision of the Court more akin to the vision expressed by President Abraham Lincoln when he pushed back against the Dred Scott decision. They call on Congress and the President to compress the ruling to only the two litigants in the case to vindicate a more coherent understanding of constitutionality between the branches.
Some quotations from the article:
“A case as wrongly decided as Bostock would, in an earlier era, have immediately triggered the equivalent of constitutional “antibodies.” Congress would bring forth bills to limit the scope and reach of the holding, along with denouncing the Court’s institutional arrogance in smuggling in a determination of what constitutes a man and a woman on the flimsiest of pretext. The president would explain that his administration would ensure that the case be applied only to the two named litigants to the suit, since the holding did not convince him to widen its application.”
“Conservatives have become accustomed to treating the decisions of the Supreme Court as final. And in cases of ultimate import, the stakes are so high. But this, at root, is an iatrogenic problem. It is only because so many conservatives mistakenly believe the modest judicial review of Marbury v. Madison means the soft despotism of judicial supremacy that this understanding pervades popular thought about the role of the courts in settling contested legal issues.”
“Lincoln argued he would not be obliged to act upon the principle articulated in Dred Scotton other measures coming before his administration—even on issues quite different from a slave litigating over his freedom.”
The full article can be found here