Abstract
"Paul Moreno's "How the Court Became Supreme" explains how the United States Supreme Court turned itself into the most powerful court the world has ever seen. It is supreme today not only within the judicial branch but over the legislative and executive branches. Indeed, the modern Court has even acquired the power to choose Presidents, as it effectively did in Bush v. Gore. Every June, as the Court nears the end of its term and delivers anticipated decisions, every major media outlet in the nation covers the results and disseminates its rulings. A generation ago, by contrast, hardly anybody knew or cared about the Court's opening or closing. Before 1987, nearly all nominees to the Court sailed through confirmation hearings, often with little or no notice from the American public. When a vacancy occurs today, of course, an epic political bloodbath is likely to ensue.
In another sign of the Court's overarching importance, who a presidential nominee is likely to appoint has become a paramount issue in voters' minds. In 2016, for example, Donald Trump took the extraordinary step of providing a list of potential Court nominees because, as he said, voters consider the appointing of Justices among the President's most important functions. Fifty years ago, such a ploy would have been both unthinkable and unnecessary. Today, both political parties complain about what they perceive as judicial supremacy. However, neither acknowledge what precisely that means or how it happened. Tracing the long history of the Court's expansion in power and importance, Moreno suggests that we cannot blame the Constitution itself since nothing might surprise the Founders more than the imperial judiciary. Their Constitution contained a multitude of safeguards to prevent judicial supremacy, and those safeguards remain today, but most have fallen into a state of disuse.
Nor is judicial review to blame, since if the people want the Court to protect constitutional limits against the usurpations of the elected branches, then such authority must remain in the hands of the Court. It only becomes a problem-a threat rather than an aid to constitutional democracy-when the Court itself exercises legislative or executive power under what many see as the guise of judicial review. "How the Court Became Supreme" tells the story of the origin and development of that problem, offering solutions that might push the Court toward restoration of its more traditional role in our constitutional republic"--