With its decision this week in Louisiana v. Callais, the Supreme Court gutted a core part of the Voting Rights Act, Congress’s landmark prohibition on voting rules that have the effect of excluding people of color from the political process. In doing so, the court has, not for the first time, claimed an authority to reject laws passed by Congress in service of equal justice and a free society.
And it has effectively killed the Second Reconstruction, the mid-20th-century civil rights revolution. In the face of this decision, Congress must once again defend democracy from a hostile court. A plan of action already exists.
When the Supreme Court challenged the first Reconstruction 150 years ago, abolitionists and Republicans in Congress debated measures ranging from declaring certain federal laws beyond judicial reach to changing the number of justices. The partial measures they enacted saved Reconstruction — for a time. But more relevant for us today are the comprehensive reforms they proposed but never fully enacted. These reforms offer us and our representatives in Congress the tools we need now.
In the era surrounding the Civil War, opponents of slavery confronted a Supreme Court that was threatening their life’s work. In Dred Scott v. Sandford, in 1857, the court declared unconstitutional the Missouri Compromise — a congressional statute banning the spread of slavery in federal territory. A decade later, the court similarly menaced the Reconstruction laws that Congress was enacting to begin the project of multiracial democracy amid the wreckage of the former Confederacy.
But Congress did not submit to this judicial rule. Members of an ascendant Republican Party decried a court “inflated with supremacy” and declared that whenever a decision is, “in the judgment of Congress, subversive of the rights and liberties of the people,” it is the “solemn duty of Congress” to override it. In 1862, Congress and President Abraham Lincoln enacted legislation that banned slavery in places the Dred Scott decision had protected it. Congress also drafted the 13th, 14th and 15th Amendments to the Constitution, all of which advanced Congress’s goals of freedom and political equality while empowering Congress to enforce its terms by “appropriate legislation.”
When the postwar court appeared likely to challenge legislation Congress considered “appropriate” to enforce these amendments, Congress changed the size of the court. The House of Representatives then passed a bill that prohibited the court from invalidating any federal law without the concurrence of two-thirds of the justices. Representative John Bingham of Ohio, the primary author of the 14th Amendment, insisted that such a requirement was necessary to prevent a second Dred Scott decision. Some members agreed but pushed for a unanimity rule (concurrence among all the justices) instead.
In the Senate, the author of the 13th Amendment, Lyman Trumbull of Illinois, proposed that Congress declare its Reconstruction Acts “political in their character, the propriety or validity of which no judicial tribunal is competent to question.” As the threat from one pending Supreme Court case became urgent, Congress enacted a narrower but decisive measure stripping the court of appellate jurisdiction over the particular challenge before it.
That strategy worked. Disciplined by Congress, the court declined to interfere with its abolition or Reconstruction Acts. As federal prosecutors and lower courts enforced these statutes, over 750,000 Black Americans voted for the first time. Black men even took seats in Congress, where they helped draft and pass the nation’s first national voting rights laws.
But Congress — distracted by postwar problems and a fiendish president, Andrew Johnson — did not take up the more enduring court reform proposals that were then before it. In the 1870s, the court re-emerged to finish what it had started. Seizing for itself the power to decide the meaning of the amendments Congress had just drafted, the court announced that it was not “appropriate” for Congress to ban lynching, racial discrimination by businesses or widespread disenfranchisement. A century-long era of Jim Crow emerged.
As Frederick Douglass lamented at a mass meeting of Black voters in 1883, by claiming the power to invalidate acts of Congress and then using that power to undermine federal civil rights laws, the court had become “the autocratic point in our National Government.”
For the century that followed, the court narrowly interpreted the Reconstruction amendments to permit any voting restriction it did not think had the intent to racially discriminate. It upheld almost every scheme Southern states adopted to disenfranchise Black residents, including literacy tests.
But the civil rights movement proved that the supremacy of the court was not permanent. On the urging of organizers like John Lewis, Congress repudiated the court’s narrow vision of its legislative power. In what President Lyndon B. Johnson called a “triumph for freedom,” the Voting Rights Act of 1965 interpreted the Reconstruction amendments differently from the court, enforcing them to ban literacy tests and establish a preclearance regime to prevent states from cycling through one suppression mechanism after another.
The Voting Rights Act helped unleash a Second Reconstruction with a surge of Black voter registration and representation. But in the years that followed, the court regressed. In a 1980 decision called City of Mobile v. Bolden, the court read the Voting Rights Act to require proof of discriminatory intent — collapsing the statute back into the court’s stingier understanding of the Constitution. Congress responded in 1982 because, as Congress understood, in a world where architects of suppression keep their motives off the record, an intent requirement guarantees impunity. Instead, Congress amended the Voting Rights Act to overrule Bolden and set an effects test — something that could be detected and fixed — instead.
One person who objected to Congress’s response was Justice William Rehnquist, who spent his career arguing that Congress lacked authority to enforce the Reconstruction amendments beyond the court’s own cramped readings. His former law clerk, a young lawyer named John Roberts, carried that project into the Reagan administration by unsuccessfully urging the administration to block the 1982 legislation.
Mr. Roberts eventually replaced Justice Rehnquist on the Supreme Court and followed his mentor in seeking to restore a premise Congress had long repudiated: that the best meaning of the Reconstruction amendments is found not in the statutes Congress enacts to fulfill their promise, but in the late-19th-century court opinions that defied Congress’s first efforts. In Shelby County v. Holder in 2013, the Roberts court dismantled the Voting Rights Act’s preclearance mechanism. This week’s ruling finishes the job.
If Congress does not respond, we know how this story will end. But just as we can learn from the consequences of acquiescing to the Supreme Court’s constitutional interpretation, we can also draw upon the tools past Congresses have offered for how to build a more democratic constitutionalism. In that version, constitutional meaning is determined not by unelected judges but by we the people and our representatives through federal lawmaking.
Rejecting the court’s supremacy, Congress should reaffirm its own interpretation of the Reconstruction amendments by statute — as the 1862 Congress did after Dred Scott and the 1982 Congress after Bolden. Congress could declare, for example, that constitutional democracy demands a new Voting Rights Act that deploys proportional representation to end partisan gerrymandering or that rejects the unrestricted flow of money in politics. To make its interpretations stick, Congress should enact measures like those suggested by its predecessors.
As the founding generation of Republicans understood, the Constitution explicitly empowers Congress to regulate the court. By contrast, the document says nothing about the court’s claimed authority to regulate Congress. Instead, the court’s alleged authority to defy and second-guess acts of Congress has been sustained only because the American public has so far been willing to tolerate this judicial rule — a choice that can be unmade.
Lincoln understood the stakes of this choice when he warned at his inauguration in 1860 that if “vital questions affecting the whole people” are to be “irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers.”
We must not cease to govern ourselves.
Nikolas Bowie and Daphna Renan are law professors at Harvard and fellows at the Radcliffe Institute for Advanced Study. They are the authors of the forthcoming book “Supremacy: How Rule by the Court Replaced Government by the People.”
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