Daphna Renan

speaker

126 appearances 1 recordings 1 series first heard Sep 2026 last heard 5d ago

Daphna Renan’s voice in public audio — every appearance, attributed to the second.

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Recordings per month over the last 12 months — 1 in all, peaking in Sep 2026 with 1.

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Strict Scrutiny · We Need To Talk About Judicial Review · 17 Sep 2026 podcast

Uh so it is deeply ahistorical to suggest that what we have is a system of government where the court has some like

need to decide every constitutional question.

That is not the system we have ever lived in.

Um and it's not the the body of laws that were created at the founding to to structure the the powers of the Supreme Court.

This authority of Congress to regulate the appellate jurisdiction of the Supreme Court is what Charles Black described as the rock on which the legitimacy of the whole uh judicial project functions in a democracy.

So the the power is there and it's really a policy conversation of like, well, what what should Congress do?

What are good uses of that power to regulate and cabin the court so that you can enable a more democratic interpretation of the Constitution, the one that we see reflected in federal statutes, to have meaning and and force in the world.

And we're kind of at

An extreme outer bound of what judicial supremacy can look like in in the United States today.

So there's a range of options on the table.

Uh and it the the choice is not all or nothing.

So so one possibility, as you said, is the possibility that um has been proposed by influential voices across American history, including the uh the lead author of the Fourteenth Amendment, that says, look, we should have some sort of consensus rule so that the court doesn't get to invalidate a federal statute unless

7281, maybe a unanimity of the justices think that there's really no basis on which to think that this statute is constitutional.

And that would be kind of institutionalizing an idea that has always been at the core of justifications of judicial power, which is that the court shouldn't second guess the work of Congress if there is a plausible justification for what Congress.

Yeah.

The the argument's often associated with a an early uh uh a nineteenth century, late nineteenth century scholar James Bradley Thayer that said, you know, you need a clear error, obvious error.

uh before you can invalidate an act of Congress.

Actually, Frederick Douglass made that argument before James Bradley Thayer.

But but he said in lamenting the the civil rights cases, look, unless there is like no justification you can give me for the validity of a law, how are you telling me that the Civil Rights Act of 1875 is an unconstitutional statute?

So so a consensus rule is just bringing into being this idea that has been

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