Concerted opposition to the independent judiciary has begun to percolate on the left with little scrutiny. Last week, Democratic National Committee Chairman Tom Perez, Hillary Clinton’s former spokesman Brian Fallon, and Democratic Rep. Ro Khanna rallied activists seeking to enervate judicial independence through proposals like court-packing and term limits for justices.
Left-wing influencers like Democratic Rep.-Elect Alexandria Ocasio-Cortez and attorney Michael Avenatti have endorsed the former proposition already. Progressive websites like Vox.com have repeatedly challenged the notion of judicial review. And dozens of leading lawyers on the left are organizing support for such ideas. The list goes on.
Yes, the proximate cause of the movement is the most contentious Supreme Court confirmation in history. But while it appears to be mostly a reaction to a single nominee’s confirmation to a single seat, the fever pitch is really 60 years in the making. For most of that time, progressive jurists circumvented the normal constitutional amendment process by reading into the law meanings that were never there to impose desired social policies on the nation, exceed the enumerated powers, and traverse protections of individual rights.
The Old ‘Living Constitution’ Canard
Their jurisprudence was innocuously rationalized by the existence of a “living Constitution.” Sometimes such decisions were characterized by activism of the court imposing its preferred policies on legislatures, like in the Miranda, Roe, and Obergefell decisions. Other times they were characterized by restraint, permitting the political branches to act contrary to statute or the Constitution, like in Chevron, Gonzales, and Sebelius cases. Often they were joined by liberal justices appointed by Republicans. They might have been earnest and well-meaning, but their rulings were also offensive to the rule of law and to millions of informed and motivated voters.
After decades of conscious intellectual and political pushback from conservatives, progressives’ ability to achieve their policy ends through the courts was stalled by a critical mass of textualist justices. Constitutional limitations on federal overreach were fortified in commerce clause cases, like Lopez and Morrison, First and Second Amendment cases, like Citizens United and Heller, Tenth Amendment cases, and others. But the first four of these cases, for example, rested on a knife’s edge with only five-vote majorities. That fact weighed heavily on voters’ minds during the 2016 election, with a seat vacant after Justice Antonin Scalia’s sudden death.
Now the Tables Are Turned on Them, They Cry Foul
After generations of liberal policy victories secured by acquiescent jurists, the Supreme Court has finally swung back slightly in favor of the text, raising progressives’ ire, which brings us back to the present. What they were able to do to the Constitution implicitly through the courts, many progressives are now calling to be done externally at the expense of the judiciary’s independence. That includes term limits for Supreme Court justices, packing the court with new justices, and even ignoring or curtailing judicial review generally.
These proposals arguably lift the veil on the far left, which mostly saw the judiciary as a means to be exploited for narrow political ends. They are naked attempts to subsume judicial prerogatives into the political branches, thereby fundamentally endangering the liberty of the people. The three branches are separate and designed to check one another for a reason.
Whenever legislative, executive, and judicial powers are consolidated into fewer than three bodies, there’s a risk that one may violate the Supreme Law and the rights of the people with impunity. Without an independent judiciary to review the legality of the government’s transgressions against the people, there is little to stop them other than electoral failure.
Inspired by England’s history and Montesquieu’s thinking, the framers of the Constitution explained this imperative. Alexander Hamilton quoted the French thinker in Federalist 78:
For I agree, that ‘there is no liberty if the power of judging be not separated from the legislative and executive powers.’ And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.
The more consolidation, the greater the threat. Taken to its logical conclusion, James Madison wrote in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”
We Don’t Want Courts, We Want Supra-Legislatures
Despite this time-tested political wisdom, some progressives insist on increasingly blending the Supreme Court with the other branches. It is in this light that current proposals to dilute the judiciary’s independence should be viewed.
The first measure commonly mentioned is the least harmful. It would impose 18-year term limits on justices staggered so that presidents get to appoint a new justice every two years. In addition to Khanna, George Washington University law professor Alan Morrison defends this idea in The Hill, as does Harvard Law professor Laurence Tribe in an interview with Jennifer Rubin, one of The Washington Post’s ostensibly conservative opinion writers. They say giving presidents an equal number of staggered appointments would make Supreme Court politics more predictable and fairer.
However, by increasing the number of appointments, the change would also bring the court closer to the realm of electoral politics and the other branches of government. It would increase the consideration of the court in the minds of voters and increase the frequency of appointment battles in the Senate. I also doubt the country truly wants to experience what was wrought during the last confirmation biennially.
More to the point, the court’s independence depends on its distance from the actions and the elections of the other two branches. The reductio ad absurdum is to consider if term limits were shortened so every presidential term the court’s majority would be appointed. That way successive administrations could not only be guaranteed token representation on the court, but also power in shaping precedent. However, it would also give single elections disproportionate sway over the third branch so that a president’s and Senate’s cases were adjudicated mostly by their own appointees, diluting the value and objectivity of judicial review.
Veteran justices, who would be eliminated by this alteration, are a feature of the court, not a bug. Edmund Burke said society is “a partnership … between those who are living, those who are dead, and those who are to be born.” So too the body of law, which is accumulated across generations and passed along. Jurists who had closer proximity to the deliberations of the prior generation provide an important perspective. Ridding the Supreme Court of veterans necessarily rids it of some unique accumulated wisdom.
Or Just Pack the Court — For Real, This Time
The second proposal is more dangerous and popular. It calls to pack the court by adding two to six new justices to the current body of nine. It is a naked attempt to permit the political branches of the moment to co-opt judicial prerogatives and overrule precedent by cheap proxy instead of through the normal legislative or amendment or even confirmation process. (And it should lay to rest left-wing appeals to stare decisis.) That proposal constitutes a power grab so craven that it should impel the people to instantly and summarily penalize any party seriously entertaining it.
Because the Constitution does not explicate the number of justices, Congress established it by statute and altered between six and 10 during its first 50 years. The last change was made during the early years of Reconstruction, and the court has remained at nine for 149 years to present day. The extremely popular Franklin Roosevelt infamously tried to pack the court in the aftermath of winning the largest landslide of any contested presidential election in history. Despite a 79 percent majority in the Senate, enough Democrats had enough principle to rebuke the plan.
The Judiciary Committee said: “The theory of the bill is in direct violation of the spirit of the American Constitution and its employment would permit alteration of the Constitution without the people’s consent or approval; it undermines the protection our constitution system gives to minorities and is subversive of the rights of individuals.”
It is that simple. Roosevelt thought he should have the right to change the Constitution outside of the amendment process to foist his unconstitutional policies on the people. But Democrats rejected the scheme despite holding the largest Senate majority of any party since Reconstruction. Even then they faced a wave election loss during the following midterms.
In addition to Ocasio-Cortez and Avenatti, many other influential progressives are resurrecting the idea today despite facing a Republican Senate and president they insist is dangerous. Tribe joined other prominent lawyers in a formal campaign to this end. Paradoxically, he justified the plan because Republicans “have prioritized the expansion of their own power over the safeguarding of American democracy and the protection of the most vulnerable among us.”
Talk About Politicizing the Courts
They seek an expansion of power at the expense of democratic institutions and protections for individual rights. A president and Senate giving themselves the power to appoint enough new justices of their ilk could effectively make the court their subordinate and bastardize the meaning of the Constitution without the permission of the people. It is a clear threat to liberty that must be recognized as such.
The third approach to the court is the most radical but least defined. The progressives taking it wish to delegitimize the court generally, and possibly dilute judicial review or even eliminate the court as we know it.
Some of these radicals, including Vox’s Ezra Klein and Matt Yglesias, and author David Faris, make a tempestuous case premised on recent developments that occurred within constitutional bounds. They say our constitutional system, including the Electoral College, the Senate, and especially the Supreme Court — should be viewed as illegitimate by the public and subjected to major changes because of that.
The facts of their case include recent court decisions rendered against progressives, the Senate exercising its advice and consent prerogatives by declining to confirm Merrick Garland and then confirming Brett Kavanaugh over uncorroborated smears against his character, and that no presidential election has still ever been decided by a non-existent mechanism they call the “national popular vote.” Why is the system illegitimate? Because they said so.
Each episode upsetting progressives occurred within the parameters of the system and could have gone a different way if the votes did. The rules are more than 200 years old and widely known to everyone well before 2016. However, these writers argue that the fact events subsequently unfolded as they did show the framework is illegitimate.
Narrow decisions like these say little about the system itself, and certainly nothing about the legitimacy of the court and the necessity of judicial review by an independent body. The legality of political acts and the constitutionality of laws must be decided somehow. Calling to burn down the existing structure that perform those tasks before establishing a superior replacement is deeply unwise.
We Want Mob Rule All the Time
Other radicals have a more deep-seated and philosophical resentment for the independent judiciary and judicial review. New York University law professor Christopher Sprigman, Harvard law’s Mark Tushnet, and Vox’s Dylan Matthews argue the Supreme Court cannot be trusted to make good decisions, because it is anti-democratic and that judicial review should be ended as-is. Instead, the lawyers say legislatures should have final say over the constitutionality of their own laws.
If the Constitution exists to limit the powers of simple legislative majorities, but those legislative majorities have the only say in whether they have exceeded their powers, then the Constitution is rendered nearly meaningless. With nothing to enforce it, all that remains is the will of transient simple majorities. The last and most radical proposal being entertained on the left is, in fact, to effectively end the world’s oldest written Constitution.
This brings us back to the founding wisdom. When the powers of law making, enforcement, and review are combined in the same body, it sets the necessary predicate for tyrannical abuse of power. It becomes not a question of if, but when the abuse will occur. Although the judiciary has the least potent prerogatives, wielding neither sword nor purse, as Hamilton wrote, its negative check on those with the sword and the purse is necessary to the preservation of liberty.
The Constitution is more than just the sum of its parts. Even one ill-advised alteration could render much of its rest futile. If the most radical elements of the political left metastasize, the integrity of America’s political inheritance will be in jeopardy.