Judicial Supremacy, Not Judicial Restraint, Enables the Imperial Presidency
Source: Nikolas Bowie, Daphna Renan. "John Roberts’ role model shows everything wrong with the Supreme Court.." September 16, 2026. slate.com
The Gist
The authors argue that the Supreme Court isn't really acting as a check on Trump when it seems to rule against him—it's just enforcing laws Congress already passed. The real danger, they say, is a different power the Court has given itself: the ability to strike down any law Congress passes that limits presidential power, a power the authors trace back to a 1920s case rooted in sympathy for a 19th-century president who defied Reconstruction laws. Their solution is for Congress to strip the Court of this power to nullify statutes, so that laws restraining future presidents can actually stick.
Conclusion
The next Congress must abolish or sharply limit the Supreme Court's self-claimed power of judicial supremacy—the power to nullify federal statutes whenever five justices disagree with Congress's constitutional judgment—and require the Court to enforce federal statutes instead, because this power is what has enabled and protected presidential lawlessness.
Premises
- The Supreme Court's occasional rulings against Trump (on tariffs, mail-in ballots, birthright citizenship, ICE actions) are not exercises of a special check on the president but simply enforcement of existing federal statutes Congress already wrote.
- The Court's most consequential and dangerous rulings are the ones where it has struck down or defied federal statutes meant to restrain presidential power, such as criminal liability for corruption, removal protections for independent agency officials, the Voting Rights Act, and campaign-finance law.
- Historically, when Congress used statutes (the Command of the Army Act, Tenure of Office Act) to restrain a lawless president (Andrew Johnson) during Reconstruction, this was an effective and constitutionally proper check.
- Decades later, the doctrine of judicial supremacy over Congress was deliberately constructed (culminating in Taft's Myers v. United States opinion) specifically to protect the presidency from congressional restraint and to vindicate Andrew Johnson's legacy.
- Today's Court has explicitly revived and celebrated this same project (as seen in Trump v. Slaughter and Roberts' own comments praising Taft), using it to strike down modern statutory checks on presidential power.
- A court that is required only to enforce federal statutes (rather than nullify them at will) would still be able to strike down unconstitutional executive action, since federal law already instructs judges to do so.
- For Congress to meaningfully restrain future presidents through legislation, such laws must be able to 'stick'—meaning the Court cannot retain unilateral authority to invalidate them based on its own constitutional preferences.
Assumptions
- The Supreme Court's power to strike down federal statutes as unconstitutional (broad judicial review) is a self-created doctrine rather than a legitimate, constitutionally mandated function.
- Statutes passed by Congress to restrain presidential power are generally legitimate and correctly judged as constitutional by Congress itself.
- The historical trajectory from Andrew Johnson's impeachment to Myers v. United States is a fair and sufficient analogy for understanding the modern Court's motivations and behavior.
- A judiciary limited to statutory enforcement (without power to void statutes based on independent constitutional interpretation) would not itself become an instrument of executive or congressional overreach.
- The justices' expressed admiration for Taft and historical parallels reveal ideological motivation rather than principled constitutional reasoning.
- Removing the Court's power to invalidate federal statutes would not endanger minority rights or individual liberties that sometimes depend on judicial review of majoritarian legislation.