President Joe Biden called the voting laws being enacted by red states “Jim Crow on steroids,” as if being denied a gift of water from a party seeking a vote was worse, on steroids, from lynching. Granted, Biden’s absurd hyperbole has become the norm for deep political thought among the unduly passionate, but the fact that he invoked the post-Civil War Jim Crow era today raised the question David Brooks asks: What does America of 150 years ago have to do with America today?

Anybody with eyes to see and ears to hear knows about the oppression of the Native Americans, about slavery and Jim Crow. But does that mean that America is even now a white supremacist nation, that whiteness is a cancer that leads to oppression for other groups?

As bad as Dred Scott was, it’s no longer the law. Much has happened since then, from Brown v. Board of Ed to the Civil Rights Act of 1964, to lawfare, the weaponization of the court to accomplish what couldn’t be achieved in a paralyzed Congress. Outside of the rare instances when mention of more recent history is useful, the arguments still raise ancient legal history as if it’s happening at this very moment. And that’s the context in which Jamelle Bouie places Biden’s Commission to reinvent the Supreme Court.

The commission is Biden’s something, and it isn’t much to look at. Not only is it not meant to make recommendations or suggest a course of action, but its members come from the upper echelon of the legal elite — exactly the people most comfortable with the institutional status quo on the Supreme Court.

But this doesn’t mean the commission is worthless. It may not offer needed reforms, but in its three meetings so far it has already served as a valuable platform for scholars with a cleareyed view of the court and a powerful critique of its current role within the nation’s constitutional order. If nothing else, the commission has helped elevate important ideas and perspectives the broader public needs to hear. It is interesting, illuminating and worthy of your attention.

I watched some of the commission testimony, and it was indeed serious in that academic sort of way that bores one to tears. But as Bouie notes, it does provide a platform for some of the more radical voices of academia to create a “record” as if their appeal to expertise meant that it wasn’t contrary to both the foundational purposes of our separation of powers and designed to fill the intellectual deficits of the most emotionally crippled.

In his written testimony, for example, Nikolas Bowie, an assistant professor of law at Harvard, takes aim at the idea of the Supreme Court as a defender of the rights of vulnerable minorities. That, he says, is a comforting myth. The truth is much uglier. “As a matter of historical practice,” Bowie writes, “the Court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status.”

Giving Bowie some credit for landing a gig at Harvard Law School, I won’t assume he’s a dope, so this is crafty crap. There is no “idea” that the Supreme Court is a biased institution whose purpose is to side with “vulnerable minorities” no matter what. It’s not a “comforting myth.” It’s a lie, and Bowie is the liar. And he’s right, it’s undermined federal laws that are unconstitutional because they violate the Fifth and Fourteenth Amendments, because the Court doesn’t exist, never existed, and shouldn’t exist to “eliminate hierarchies of race, wealth, and status.”

But how does the tag team of Bowie and Bouie make its case?

This is most apparent, Bowie notes, in the court’s relationship to America’s racial caste system. The 1857 case Dred Scott v. Sandford was one of the first decisions to invalidate a federal law and circumscribe Congress’s ability to act, in this case asserting that the Constitution forbade the nation’s representatives from restricting the spread of slavery or giving Black Americans the rights of citizenship.

There it is. The dreaded Dred Scott. Got anything else, guys?

In the 1876 cases, United States v. Cruikshank and United States v. Reese, the Supreme Court forbade Congress from protecting the voting rights of Black Americans in the face of violent mobs and state disenfranchisement. In the Civil Rights Cases of 1883, it forbade Congress from outlawing discrimination in public accommodations, and in the infamous Plessy v. Ferguson in 1896, the court upheld the doctrine of “separate but equal.”

Has there been nothing, absolutely nothing, in, say, the past 100 years worthy mentioning?

Even the vaunted Brown v. Board of Education demonstrates the extent to which the court has been a hindrance in the fight for equal rights. Here’s Bowie,

Brown is not an example of the Supreme Court disagreeing with Congress about the constitutionality of a federal law. To the contrary: the Brown Court enforced the Ku Klux Klan Act of 1871, one of the federal laws the Supreme Court had earlier gutted, but which nominally prohibited southern states from discriminating against Black people.

With Brown, in other words, the court was finally stepping out of the way of Congress after it had, as Bowie notes, “directly contributed to the rise of Jim Crow.”

Is Brown v. Board now an example of bad Supreme Court law? Not quite, although its breakthrough at the time is now twisted into woeful inadequacy under the current spotlight. Had the Court not bolstered racism in Dred Scott and Plessy, then Brown wouldn’t have been needed, proving that the Supreme Court is the problem.

The point of all this is both to disempower the court and to make it less central to our politics and our constitutional order. This idea, that the court should work with our democratic aspirations and not against them — and that we should not hesitate to change and experiment with the court should we find ourselves struggling against it — is practically verboten among mainstream politicians.

Over the past generation, the Supreme Court has engaged in some dubious policy making when Congress wouldn’t. From abortion to same sex marriage, SCOTUS gave us what Congress would not. It was able to do so because it is a deliberately undemocratic institution, one that can rule without regard to the transitory whims of politics, which might not be nearly as kind to the aspirations of Bowie and Bouie for racial equity.

It’s almost as if the last three appointed justices has turned the institution upside down, and the lawfare that was used to accomplish what the democratic institutions refused might no longer produce the outcomes they desire. Then again, if Bowie and Bouie got their way, would they be satisfied should the winds of public sentiment shift and they were relegated to the back of the bus?

Without a Supreme Court capable of bucking the worst of democratic political tends, maybe the persistent references to Dred Scott wouldn’t be archaic, but still the law of the land. One would expect Harvard lawprof Bowie to know better. As for Bouie, who knows?