Washington, October 14 — A commentary published on SCOTUSblog on October 9, 2026, reignites debate over the constitutional basis of judicial review in the United States, arguing that the Supreme Court’s power to strike down laws has historically worsened racial and economic inequality. Richard Rothstein, the author of the piece, contends that this authority is not explicitly granted in the U.S. Constitution and has been used to undermine civil rights protections and economic regulations throughout American history.
Rothstein points to the Court’s 1883 decision in the Civil Rights Cases, which invalidated federal civil rights laws enacted after the Civil War, holding that the 13th and 14th Amendments only prohibited state-sponsored discrimination, not private acts of discrimination. This ruling, he argues, undermined laws that banned lynch mobs and guaranteed equal rights to make and enforce contracts, sue, testify in court, and receive equal protection under the law.
He further cites the 1896 Plessy v. Ferguson decision, which upheld “separate but equal” facilities despite their inherent inequality, legitimizing racial segregation for decades. From 1978 to the present, Rothstein notes, the Court has progressively narrowed and then eliminated remedies for past racial discrimination, including affirmative action in higher education and employment, while weakening voting rights protections for African Americans in jurisdictions with histories of voter suppression.
He references the Lochner era, beginning in 1905, during which the Court invalidated approximately 200 state laws regulating child labor, wages, and working hours over a 35-year period, often invoking substantive due process to strike down economic regulations. During the New Deal, the Court repeatedly struck down federal efforts to regulate wages, prices, and corporate competition, including provisions of the National Industrial Recovery Act and the Agricultural Adjustment Act, which aimed to curb destructive “race to the bottom” practices that worsened the Great Depression.
Rothstein acknowledges a brief period from approximately 1937 to 1969 when the Court adopted a more deferential stance toward economic and civil rights legislation, coinciding with the decline of overt racial caste systems and the expansion of the economic safety net. However, he argues that the Court’s overall trajectory has contributed to persistent disparities in wealth, opportunity, and political influence. He highlights more recent decisions that have limited campaign finance regulation, such as Citizens United v.
FEC (2010), and enabled partisan gerrymandering, as seen in Rucho v. Common Cause (2019), which he says entrenches the political influence of wealthy donors. The commentary concludes that it is long past time to reassess the constitutional balance among the Court, Congress, and the presidency, and to consider mechanisms to correct the harms caused by the Court’s expansive use of judicial review.
The piece carries a disclaimer noting that SCOTUSblog’s “Outside Opinions” section features contributions from external writers and does not reflect the views of SCOTUSblog or its staff. As of the current administration under President Donald Trump, Vice President JD Vance, and Secretary of State Marco Rubio, no official response to the commentary has been issued.
Observers will watch for any legislative or judicial reactions to the renewed scrutiny of the Court’s role in shaping American inequality.
