by Mark Strand
“Biggest damfool mistake I ever made,” said former President Eisenhower, eight years after he left office, about his appointment of Earl Warren to the Supreme Court. Eisenhower’s frustration followed major liberal decisions, including abolishing prayer in schools, establishing Miranda Rights for criminals, and changing redistricting with the one-man-one-vote decision.
Barry Goldwater charged that “of all three branches of Government, today’s Supreme Court is the least faithful to the constitutional tradition of a limited government and to the principle of legitimacy in the exercise of power.” (NY Times, September 27, 1964)
Ronald Reagan opined: “The scales of criminal justice are still tilted towards protecting the rights of criminals. Lenient judges are only lenient on crooks; they’re very hard on society.” (1964)
Liberals are loud in their complaints about the Supreme Court today, but for the more than two decades of the Warren and Burger Courts, conservatives have also done a lot of complaining. These courts overturned state restrictions on abortion and obscenity, ruled for the press over the government on national security issues, and banned the death penalty. While conservatives never advocated court packing, like today’s progressives, they were undoubtedly equally unhappy with many of the decisions made by the Supreme Court.
In politics, as in life, the pendulum swings.
Today, President Joe Biden and a host of liberals complain about the more conservative Roberts Court with the same anger conservatives did 50 years ago. Joe Biden and his supporters want to “reform” the Supreme Court and have proposed radical ideas to do so.
Sen. Jeff Merkley of Oregon said, “This activist, extremist MAGA court faces a legitimacy crisis, which has in turn created a crisis for our democratic republic.”
But politicians, indeed most people, misunderstand the Court’s role. While politicians look at the polls and try to anticipate public opinion, the Supreme Court is most important when it rules against the majority opinion to protect the Constitutional rights of the political minority. That is precisely what the Supreme Court is supposed to do. The Founders rightly feared pure majority rule because they knew that in a small “d” democracy, a majority could always be counted on to impose their will on the minority, regardless of whose rights were being trampled.
The internet publication Axios, which is, for all intents and purposes, an arm of the Democratic National Committee, published a survey this week on the Supreme Court’s job approval rating. Their article ranked the Court’s popularity with Republicans, Independents, and Democrats as if the Supreme Court justices should be competing for office in the Fall elections.
The job of the Court is to protect the rights acknowledged by the Constitution, not to win elections.
The independence of the Supreme Court is one of the critical pillars of the balance of power—the inspired notion of the Founders that the concentration of power in any one branch of government was dangerous to democracy. Not only is the current Supreme Court checking the Executive power of the Biden Administration, but it is insisting that Congress do its part to maintain the Constitutional system of checks and balances. No wonder Biden and the progressives are so angry.
Checking the President’s power will usually irk whomever the current resident of the White House is, but it is the essential constitutional means of preventing authoritarianism.
In the past, Democrats have advocated packing the Court to bring the Supreme Court into compliance with the Executive branch’s wishes. As I wrote for the Fulcrum (October 28, 2020):
Court-packing adds seats to the Supreme Court or other benches, not replacing an open seat. A court-packing scheme would be a massive shift in power from the judiciary to the executive branch, eliminating one of the most essential safeguards built into our Constitution. Over several decades, Congress has steadily ceded power to the President by ignoring its oversight mandate, not making tough budget decisions, handing over spending prerogatives, and allowing administrations of both parties to substitute regulations for legislative action.
Court-packing would be a fundamental shift of judicial independence that leads down a very dangerous road to excessive executive power. This would mean that presidents could add politically sympathetic members until the Supreme Court is little more than a rubber stamp for the President’s personal partisan policy preferences.
If a future president acquires the bulk of the powers that the Constitution gave not only Congress but also the Supreme Court, such a dangerous amount of concentrated power would undermine the constitutional system of checks and balances. …
Consider this: A federal court rules an executive order unlawful, and the President gets a Congress run by his party to add three seats to the Supreme Court so he can name justices he can count on to overturn that original ruling. That is court-packing. And it is dangerous to create a rubber stamp on one party’s rule in Washington.
Franklin Roosevelt’s goal in 1937, when he proposed packing the Court, was to fill it with Justices sympathetic to his economic views. Congress rejected that then and has continued to do so.
Court-packing has been a goal of progressives because while the Constitution requires lifetime tenure, it does not set a number for how many Justices can sit on the Court. Indeed, the number has varied in our history, from a low of five Members in the late 18th Century to the nine Justices established and maintained since 1869.
This is where President Biden’s proposal is particularly pernicious and sneaky. Biden proposes that every President get two appointments to the Supreme Court. Once the new law goes into effect, as each appointment is made, the most senior Justice would lose their ability to perform their Constitutional role, becoming slightly more elevated than a Justice-emeritus. In other words, a Justice is placed into semi-retirement every two years as a new Justice takes over their duties until the Court consists of nine Justices serving 18-year terms each.
By doing this, Biden seeks to avoid the Constitutional requirement for lifetime appointments by changing the role of “senior” Justices, temporarily packing the Court, and neutering the most senior members. On its face, this is unconstitutional as a law. It could, in theory, be accomplished by Constitutional amendment. Biden’s proposal is far more radical than even FDR’s approach, which maintained the power of existing Justices while adding more to his partisan liking.
The key to judicial independence, and therefore the ability to check the other two branches of government, is the lifetime tenure of Justices.
Adam White of the American Enterprise Institute writes: “From the start, this (judicial independence) has been recognized as life tenure—“permanent tenure of judicial offices,” Alexander Hamilton called it, to ensure “the faithful performance of so arduous a duty.” And a justice’s permanent tenure puts enormous weight on the President’s and Senate’s consideration of his appointment in the first place. As then Senator Biden told John Roberts at his 2005 confirmation hearing, “The Constitution provides for one democratic moment, Judge, one democratic moment before a lifetime of judicial independence.” (He repeated this, nearly verbatim, at Samuel Alito’s confirmation hearing.)”
Mr. White cites three reasons why life tenure is essential to judicial independence.
First, the Court is not supposed to be partisan like the Congress and the Presidency, riding waves of public opinion every two years. “It’s not fair,” Biden complains, that Trump got three appointments to the Supreme Court, and he only got one. But Presidents do not get to try to shape the Court more to their liking because it is “fair.” Every President who the Courts have overruled complains, but the louder the complaint, the more evidence that the Court is exercising its essential independence.
Second, Supreme Court Justices should not worry about their next job. Certainly, big law firms would love to hire a former Supreme Court Justice and might pay them millions of dollars to join their firm. This introduces a powerful motive for corruption.
Third, the Senate has a role in giving consent to a President’s nomination. If the Senate holds up a presidential nomination for two years, would the President be allowed to bypass the Congress and make their legally required appointment? Who would decide? Probably a more partisan court.
That is all bad enough. But what about future Congresses manipulating the Court for their purposes? Maybe after a Democratic Congress adds four new Justices, a future Republican Congress changes the law so that only the senior members of the Court, more to their liking, can rule on critical issues by stripping “junior” Justices of their core Constitutional duties. Maybe Congress targets Justices in the middle who oppose their views by requiring them to take sabbaticals from the Court for four years. There is no end to the monkey business once the makeup of the Court becomes a partisan exercise.
People who read my columns regularly can predict what I will say about the system of checks and balances. Every country has an Executive, whether a President or prime minister, king or emperor, chairman of the Politburo, or a military-imposed dictator. However, democracies require a constitutional check on the executive branch’s power, or the nation will inevitably slouch toward authoritarianism. Executives, yes even American presidents, will always suck up whatever power they can take from the legislative and judicial branches of their governments.
The reason the United States has maintained our republic for so long is that when one branch becomes too strong, the other branches knock it back down to size. Even so, our Chief Executives, whether Republican or Democrat, have taken whatever power the Congress and the Courts let them have. The Biden Administration continues to do so, forgiving student loans after the Supreme Court ruled it unconstitutional, forcing girls to compete with biological males in sports, firing soldiers for not meeting his vaccine mandate and other actions. It is the Supreme Court that prevents Biden from relentlessly violating the Constitution.
President Biden’s proposal threatens the republic and our democratic processes. Congress should reject it out of hand.
Instead, we should strive for Ronald Reagan's standard: “The only litmus test I wanted was the assurance of a judge’s honesty and integrity. I wanted judges who would interpret the Constitution, not try to rewrite it.”
It’s Finally Here
The Sixth Edition of Surviving Inside Congress has hit Capitol Hill. Since the first edition was published in 2009, close to 40,000 copies have been distributed to Congress.
I co-authored this book with Michael Johnson, Jerry Climer, and Timothy Lang. This edition (likely the final one) includes a new chapter on Congress and the Courts.
You can get your copy soon on Amazon or here: https://bit.ly/SIC6th
Want to work for Congress or just understand it better? Learn the ins and outs of how Congress really works.
The sixth edition of Surviving Inside Congress includes all you need to know to succeed as a congressional staffer or stay informed as a private citizen. Understanding how Congress really works—or doesn’t, as the case may be—is the difference between being a valuable contributor to the nation’s work and being an outsider who never really knows what’s happening.
Surviving Inside Congress has been revised and expanded to reflect important developments during the 116th, 117th, and 118th Congresses. Updates include:
A new chapter on the relationship between the Legislative and Judicial Branches
Information on the House’s Select Committee on the Modernization of Congress
Explanations on how the parliamentary procedure in both Chambers has changed dramatically, especially during the coronavirus pandemic
And a floor procedures manual and congressional glossary for the 118th Congress.
Former Speaker of the House of Representatives Paul D. Ryan:
“Our Founders designed such a unique and beautiful system of representative democracy, but the complexities of our legislative branch can be difficult to understand and navigate.
Surviving Inside Congress demystifies how Congress really works. It expertly details the players, processes, and pressure points involved in policy-making and offers readers a comprehensive roadmap to understanding Capitol Hill. Surviving Inside Congress is invaluable for anyone looking to make a difference, and the countless kernels of wisdom it provides will benefit staff and Members alike.”
Congratulations on the Sixth Edition. I will be on the lookout at Amazon to purchase a copy. And thanks for your excellent post about Biden's turgid, awful, and profoundly ignorant proposals to destroy the Supreme Court. Spot on.
Outstanding historical review of the Supreme Court that puts the current political climate in perspective.