This is part of Amicus and Slate’s “By the People” series, which explores how the American people can reclaim the Constitution—and the law—from this monarchical Supreme Court.

Supreme Court justices disagree about many things: whether the Constitution protects the right to abortion care, for example, or reifies your God-given right to carry a handgun, or empowers Donald Trump to commit crimes with impunity for so long as he remains president of the United States. Because the court is currently controlled by six Republican appointees, the answers to these questions have been (in order) no, of course, and almost certainly yes.

One thing about which the justices do not disagree, though, is that their institution alone holds the power to make these decisions in the first place. In its unanimous 1958 opinion in Cooper v. Aaron, the court described the federal judiciary’s “supreme” position “in the exposition of the law of the Constitution” as a “permanent and indispensable feature” of American governance. On its official website, the court advertises itself to visitors as the “final arbiter of the law,” and thus the Constitution’s “guardian and interpreter.”

This conception of the court’s role is both self-serving and an ambitious overstatement. By its terms, the Constitution is “ordained and established” by “the People,” who for most of this country’s history played a far more prominent role in the process of deciding what its promises mean. As the law professor Larry Kramer writes in his book The People Themselves: Popular Constitutionalism and Judicial Review, the Framers were not judicial supremacists; they were both familiar and comfortable with “improvising institutional and intellectual solutions to preserve popular control over the course of constitutional law,” irrespective of what nine life-tenured justices thought about the result.

Listen to the first episode of the Amicus podcast miniseries By the People here:

In Popular Constitutionalism, Kramer describes this tradition as one that “we seem to have lost, or surrendered, today.” The ascendance in the two decades since Popular Constitutionalism was published of a six-justice conservative........

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