The Supreme Court granted the President broad immunity from criminal prosecution for acts undertaken in his official capacity. The Court also struck down Trump’s tariffs, preserved birthright citizenship, blocked federal remedies to fix extreme gerrymandering, and permitted the President to fire commissioners of most regulatory bodies at will.

Three dissenting Justices warned that the immunity ruling "effectively creates a law-free zone around the President." These decisions have drawn attention from legal scholars who analyze the scope of judicial authority over coequal branches of government and state legislatures.

Nikolas Bowie and Daphna Renan authored the book "Supremacy," published by Norton. They are Harvard colleagues of Cass R. Sunstein, a Harvard law professor who authored the book "Separation of Powers," published by M.I.T. Bowie is a researcher.

Bowie and Renan distinguish between vertical review, which allows the Supreme Court to invalidate state and local laws, and horizontal review, which allows the Court to overrule a coequal branch of government. They contend that vertical review cuts both ways for liberal democracy, but horizontal review reliably serves regressive ends.

Bowie and Renan state that the loudest protests against horizontal review historically came from abolitionists, labor organizers, suffragists, and civil-rights activists. Their analysis places recent rulings within a broader historical context of judicial power assertions.

The Constitution does not expressly authorize the Court to overturn acts of Congress. The right of judicial review was supposedly established by Marbury v. Madison in 1803. William Marbury sued James Madison, Secretary of State of the United States, seeking a writ of mandamus to deliver his commission as a justice of the peace in the district of Columbia.

President John Adams used his lame-duck period after losing the 1800 reëlection bid to fill the judiciary with sympathizers. Some orders commissioning justices of the peace, signed by Adams and sealed by his Secretary of State, went undelivered. John Marshall was the Chief Justice who had been the Secretary of State responsible for sealing and delivering the commissions in Marbury v. Madison.

Thomas Jefferson signed a federal law that prevented the Court from meeting for fourteen months. John Marshall used Marbury v. Madison to proclaim the Court’s ability to invalidate federal laws that it deemed unconstitutional. Bowie and Renan point out that Marshall misread the statute that he was invalidating.

Marshall read out the Marbury v. Madison ruling from the steps outside Stelle’s Hotel on Capitol Hill because the Court lacked a permanent abode. Congress ignored the Marbury decision. States regularly declined to appear before the Supreme Court when ordered in the early nineteenth century.

Virginia’s highest court refused to concede that the Supreme Court had the authority to review its decisions. Justice David Brewer stated in 1893 that judicial power allows "Philip sober to control Philip drunk." This historical perspective frames the long-standing debate over judicial supremacy.

Timeline

In the early nineteen-thirties, the Supreme Court struck down New Deal legislation passed by congressional majorities. In the fifties and sixties, the Supreme Court overturned segregationist laws enacted by state and local legislatures. Larry D. Kramer authored "The People Themselves" in 2004.

Keith E. Whittington authored "Political Foundations of Judicial Supremacy" in 2007. Barry Friedman authored "The Will of the People" in 2009.

On January 1, 2016, Mitch McConnell, the Senate Majority Leader, stated, "Mr. President, you will not fill the Supreme Court vacancy." On September 18, 2020, Ruth Bader Ginsburg died at age eighty-seven. Republicans rushed to confirm Amy Coney Barrett after Ruth Bader Ginsburg died less than two months before the 2020 election.

Why It Matters

The recent rulings represent an expansion of executive power and a limitation on federal oversight of electoral processes. By granting broad immunity and permitting the at-will firing of regulatory commissioners, the Court has altered the balance between the executive and judicial branches. The preservation of birthright citizenship stands as a counterpoint to these expansions of authority.

Academic critique from Bowie and Renan suggests that such horizontal review serves regressive ends, a view supported by historical patterns of resistance from civil rights and labor movements. The decisions affect the ability of federal agencies to regulate commerce and enforce voting rights, impacting millions of citizens. The historical precedent of Marbury v. Madison continues to frame these contemporary debates over judicial authority.