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Harvard Law School professor Daphna Renan gave a critique of judicial supremacy — the idea that the Supreme Court is the final authority on the interpretation of the U.S. Constitution — at an event on Thursday.
Renan delivered the inaugural lecture, hosted by the Law School, as the newly appointed Peter B. Munroe and Mary J. Munroe Professor of Law. Thursday’s lecture previewed a new book Renan is co-writing with fellow HLS professor Nikolas “Niko” Bowie.
Renan began by expressing support for “porous legalism,” or a more flexible legal system that would de-emphasize the separations between the judicial, executive, and legislative branches and diffuse the role of legal interpretation between the courts and different political actors.
“This more porous moral and legal and political and policy judgment can be quite valuable, especially in contexts where there really aren’t clear legal answers and the humanitarian and moral and policy stakes can be quite high,” she said.
In response to the increased power of the Supreme Court, Renan instead argued for “political constitutionalism,” which “does discard of judicial supremacy.”
“It rejects the Court’s authority to have the final say on what the Constitution means or tolerates,” Renan said.
Renan also compared the current state of the U.S. with the Reconstruction era, when abolitionists staunchly opposed the decisions of the Supreme Court. Renan cited the Dred Scott v. Sandford decision — which ruled that formerly enslaved people could not be U.S. citizens — and described how the case angered abolitionists.
“These abolitionists are not only rejecting the supreme authority of the Supreme Court to say what the Constitution is, they’re also rejecting the modes of interpretation that are being used in Supreme Court decisions,” she said.
Renan went on to call the decisions of this era as “a microcosm of things to come.”
“We’ve continued to live in that kind of dangerous state of what happens when we give the Court that kind of power,” she said.
Renan’s lecture was followed by a question and answer session, where an attendee asked Renan about the state of the Supreme Court. Renan described the current Court as the “danger of judicial supremacy run amok,” adding that the appointment of justices to the Supreme Court has become “intoxicated with the politics.”
“The kind of power that we’ve given the Court to decide our most contested, most deeply felt commitments has put a strain on the appointments process that is hard for the appointments process to bear,” Renan said.
“It has led to the current Court that we have that I think is allowing, in particular and in a lot of ways, a really outlier view of what the Constitution means,” she added.
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