Politics

The Supreme Court Isn’t Broken

Recent attempts to ‘fix’ the federal judiciary are really efforts to circumvent the Constitution to achieve political goals

Published by
Timothy Sandefur

The Constitution was only five years old when Americans started looking for ways to limit the Supreme Court’s power. A decade before the famous case of Marbury v. Madison—the 1803 decision in which the Court for the first time declared a federal law unconstitutional—the justices issued a controversial ruling called Chisholm v. Georgia that allowed a South Carolina businessman to sue the government of a neighboring state for not paying him for supplies he provided during the Revolutionary War. Georgia’s governor, citing the doctrine of sovereign immunity, argued that the state was immune from suit. But because the Constitution gave federal judges power to decide disputes “between a state and citizens of another state,” the justices rejected that argument and allowed the case to proceed. Outraged politicians, realizing that the precedent would curtail their power, swiftly obtained an amendment to the Constitution—the first after the Bill of Rights—that repealed the federal courts’ jurisdiction to hear such cases.

Since then, the power of the judiciary has generated controversy, and often for the same reason. The courts lie at the intersection of two conflicting impulses in American politics: the power of the majority to make law on the one hand, and the majority’s obligation to obey the law on the other. From time immemorial, monarchists had argued that democracy was untenable because the people could never resist the temptation to ignore or rewrite whatever law stood in the way of a popular movement—even when such a movement was dangerous or delusional. This meant the people must be governed by kings, who would act as lawmakers to the subordinate populace. America’s founders, having overthrown monarchy, were forced to find a solution to this age-old objection to popular government, and their answer was (among other things) the complicated mechanism of the federal judiciary. 

Origins of the Judiciary

Acknowledging that in a pure democracy, “if a majority be united by a common interest, the rights of the minority will be insecure,” James Madison offered several possible solutions: dividing political authority to prevent foolhardy bills from becoming law, for example, and creating absolute limits on government power that would take certain questions out of lawmakers’ hands entirely.

A third answer was to create “a will in the community independent of the majority”—that is, an institution that could resist the power of mass movements. True, creating such an institution was “precarious,” because “a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party.” Therefore, Madison and his colleagues concluded, this institution’s leaders should be independent enough to resist the majority, but not so autonomous as to become dictators.

The system the founders devised accomplished their vision by giving courts power to interpret the law and insulating them from political backlash by giving judges lifetime tenure, while at the same time providing that judges are indirectly chosen by the people, are subject to impeachment for wrongdoing, and exercise powers that elected representatives can circumscribe when they choose—for example, by limiting the courts’ jurisdiction.

In the centuries that have followed, the tension between the majority’s desire to do as it pleases and its duty to act only in ways the law permits has generated countless efforts to refashion the judiciary’s powers—sometimes to rein in judges acting beyond their mandate, but more often to reduce legal constraints on the majority and to expand government’s ability to override individual rights. The latter was certainly true of the most infamous effort to curtail the Supreme Court’s power: the 1937 court-packing plan championed by President Franklin Roosevelt.

Roosevelt’s Court-Packing Strategy

Given the radicalism of Roosevelt’s agenda—which included proposals to expand the federal government far beyond anything the Constitution’s authors contemplated—the president’s supporters had expected a confrontation with the judiciary from the moment he was inaugurated. But that showdown began in earnest only in 1935, after the justices declared two of the New Deal’s most prominent elements unconstitutional: the National Industrial Recovery Act (in Schechter Poultry v. United States) and the Agricultural Adjustment Act (in United States v. Butler). Just a year before, the justices had appeared to bless aspects of the New Deal in a series of decisions that drastically expanded state power to rewrite contracts (Home Building and Loan v. Blaisdell) and dictate prices (Nebbia v. New York), but the 1935 rulings made clear that the Court did not believe the Constitution gave similar powers to the federal government.

Roosevelt—who called the Constitution a relic of “the horse-and-buggy-age,” which had been “superseded entirely by what has happened and been learned in the meantime”—had readied himself for such a conflict the previous year. Expecting the Court to invalidate important parts of his program, he had drafted a speech bidding defiance to the judiciary and announcing his willingness to “look beyond the letter of the law” and “take such steps as may be necessary, by proclamation” to implement his will despite the Court’s conclusion. He never gave that speech because the justices ruled in his favor, but after the Schechter Poultry and Butler decisions, he and his allies began working on a plan to neuter the one remaining branch of the federal government that stood as a restraint on his authority.

The White House kept the plan secret for months, but after the November 1936 elections proved a landslide both for the president’s reelection and for congressional Democrats—giving the administration supermajorities in both houses—Roosevelt saw his opportunity. Immediately following his inauguration, he unveiled a bill that would increase the pensions for justices who retired—and allow the president to appoint a new justice for each one past the age of 70 who chose not to. If adopted, this would have allowed Roosevelt to select a new Court majority—one whose loyalty he could guarantee.

Opponents reacted swiftly. “If the American people accept this last audacity of the President without letting out a yell to high heaven,” wrote journalist Dorothy Thompson,

[T]hey will have ceased to be jealous of their liberties and are ripe for ruin. . . . The essence of Democracy is the protection of minorities. . . . The Supreme Court is there to protect the fundamental law even against the momentary “Will of the people.” . . . It is precisely because nine men can walk out and say “You can’t do that!” that our liberties are protected against the mob urge that occasionally overcomes democracies. That is why the Supreme Court has been traditionally divorced from momentary majorities.

Her newspaper colleague Walter Lippmann agreed. “If the American people do not rise up and defeat this measure, then they will have lost their instinct for liberty and their understanding of constitutional government,” he wrote. “This is a bloodless coup d’etat which strikes a deadly blow at the vital center of constitutional democracy.”

The Switch in Time. In 1937 Justice Owen Roberts began to uphold many New Deal measures that he had formerly opposed, thus making it unnecessary for Roosevelt to pack the court. Image Credit: Library of Congress/Wikimedia Commons

The president brushed aside these concerns and moved ahead with his plan—but opposition from within his own party grew. In fact, as historian Ira Katznelson has shown, the court-packing scheme was ultimately defeated more by the opposition of Southern Democrats than by that of Republicans, who had been reduced almost to insignificance by the 1936 elections. The proposal also suffered a blow when Justice Owen Roberts appeared to change his mind: Having once opposed the New Deal, he joined the majority in West Coast Hotel v. Parrish in the spring of 1937 to uphold the constitutionality of a minimum wage law similar to that which the Court had invalidated only five years before. Several other important New Deal cases, thanks to Roberts’ vote, survived Supreme Court review in the months that followed.

Along with the resignation of Justice Willis Van Devanter in June 1937, Justice Roberts’ change of mind—which was soon labeled “the switch in time that saved nine”—eliminated whatever momentum there had been for expanding the number of justices. It also signaled that the Court had effectively given up trying to resist the president’s plans. Nevertheless, Roosevelt never abandoned his support for the bill and even campaigned against Democrats who had opposed it in the congressional elections that followed. 

Other Schemes To Limit Judicial Power

Like the ratification of the Eleventh Amendment and dozens of similar efforts throughout American history to curb the judiciary, the 1937 court-packing proposal revealed that efforts to restrict the courts are typically advanced by those who dislike how judges have decided things, rather than by those actually interested in improving the judiciary. The real targets of such proposals, moreover, are usually unpopular groups or individuals whom the courts have acted to protect. Since judges are charged with defending the freedoms of those whom elected officials have unjustly targeted in some way—out-of-state creditors in the Chisholm case, or business and property owners during the New Deal—proposals by outraged lawmakers to rein in the judiciary are usually just attempts to make it easier to exploit and persecute those whom the courts have dared to defend.

Court-packing is by no means a Democratic monopoly, of course. Republicans have often tried—sometimes successfully—to weaken the judiciary in ways that echo the essential elements of Roosevelt’s scheme. Among the most popular tactics are proposals to take away judges’ power to decide certain kinds of cases. Controlling courts’ jurisdiction is well within Congress’ constitutional authority—as is controlling the number of justices—but jurisdiction-stripping proposals are usually advanced in hopes of reducing the possibility that courts will stand up for the rights of unpopular minorities.

During the Reagan administration, for example, Republicans devised plans to bar the Supreme Court from deciding cases involving abortion, school busing and prayer in classrooms. Some 20 years ago, Republicans introduced the Pledge Protection Act to block federal courts from ruling on the constitutionality of legislation that added the phrase “under God” to the Pledge of Allegiance. Another proposal, the Marriage Protection Act, would have barred federal judges from interpreting the federal law that allowed states to deny recognition to same-sex marriages. Those bills never passed the Senate, but in 2005, the Detainee Treatment Act did; it eliminated federal courts’ authority to hear most habeas corpus petitions filed by aliens incarcerated at the Guantanamo Bay naval base, sharply reducing the opportunity for prisoners to have their day in court. In all these instances, the legislators’ real goal was to advance their political agendas, not to ensure that courts operated within their constitutional authority.

Perhaps the most extreme proposal in recent years was the Congressional Accountability for Judicial Activism Act of 2005, a Republican bill that would have allowed Congress to overturn by a two-thirds vote any Supreme Court decision regarding the constitutionality of a federal law. As the left-leaning group Justice at Stake observed at the time, such schemes “threaten the whole point of Constitutional rights,” because they would effectively allow Congress to decide the limits of its own powers.

Enabling Congress to overrule court rulings interpreting the Constitution would effectively destroy the protections for individual freedoms that our system was meant to provide. Further, it would enable the same majority of legislators who voted to violate someone’s rights in the first place to later declare their own actions constitutional. In spirit, the proposal was indistinguishable from Roosevelt’s failed court-packing plan. To the age-old question of whether the majority can both create law and obey it, this bill would have answered resoundingly, “No.” Instead, it would have made clear that the majority will simply change whatever law it finds inconvenient—and that the idea of constitutional government is merely a euphemism for mob rule.

The Judiciary and Democracy

Yet while schemes like these would eliminate protections against the tyranny of the majority, they are also undemocratic in an important sense. Our constitutional system is based on the principle that the Constitution represents the will of the people—but ordinary laws do not. They only represent the will of Congress. As Alexander Hamilton explained in Federalist 78, for a court to strike down an unconstitutional law is to protect the will of the people. The logic is simple: Elected officials are merely the people’s deputies, exercising authority within constitutional limits. To allow them to effectively redraw those boundaries, by changing how their own constitutional authority is interpreted, “would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.” It was to avoid that outcome, Hamilton concluded, “that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” If lawmakers could decide for themselves what powers they possessed, then they would have a blank check instead of a Constitution—and that would make Congress, not the American people, the true sovereign in the United States.

What’s more, the perennial rhetoric of “unelected judges” overriding “the will of the people” ignores the fact that federal judges actually are chosen by the people, albeit indirectly. Nobody would call the secretary of state an illegitimate, undemocratic official, or claim that the chairman of the Joint Chiefs of Staff is wrongly disregarding the will of the people when he or she issues orders to the military. Yet federal judges are chosen in the same way as cabinet officials or military leaders.

Indeed, far more voters choose presidential candidates on the basis of their likely Supreme Court nominees than their likely cabinet picks. Polls show that in 2016 and again in 2020, many voters chose Donald Trump despite having strong reservations about his fitness, because they thought he was likely to select judges whom they approved. Thus, whatever one thinks of his nominees, they certainly represent the people’s choices in this important respect. And it’s hard to call proposals to restrict their authority “democratic”—or at least, to characterize such schemes as more democratic than the decision to nominate these judges in the first place.

In the most recent iteration, proposals to pack or limit the courts have been advanced by the left wing of the Democratic Party, championed by outspoken progressives such as activist Tom Steyer and Senator Sheldon Whitehouse. These schemes seem unlikely, however, to advance beyond the work of a commission appointed by President Biden, who has indicated no enthusiasm for pursuing the matter. And that commission already appears to disapprove of court-packing or court-limiting plans. In a draft version of its report, released in late October, the commission observed that such proposals would “reject longstanding assumptions about what it means to possess a constitutional right” and “would make rights more dependent on legislative exposition.” Indeed, as the draft observes, efforts to reduce judicial independence have typically been viewed as dangerous deviations from constitutionalism when they appear in other countries. In the past 20 years alone, “authoritarian political leaders of various stripes” in Turkey, Hungary, Poland and Venezuela have “consolidated their own power and weakened the effective constitutional checks on their power by expanding the size of the judiciary so as to add their friends and allies to it.”

Legitimate Reforms

While most advocates of court-packing are motivated by little more than temporary partisanship, others have offered legitimate arguments for changing how federal courts operate. Some form of term limit, for example, might better guard against the danger of justices remaining on the court after their senescence. Increasing the number of lower-court judges would help alleviate the sometimes extreme delays in deciding lawsuits—particularly in immigration matters, where postponements have reached a crisis level. And there is nothing sacred about a nine-justice Court—many states make do with seven—or about the current jurisdiction rules. Certain changes to the courts might very well be justified.

What cannot be justified are politically motivated efforts to change the judiciary to obtain particular outcomes. Those who designed the checks and balances of our Constitution were determined to prove that the people can both create the law and also obey it. An independent judiciary is the key element of their solution to that problem—crucial for protecting the rights of those who lack the political influence to defend themselves at the ballot box. It is the feature that distinguishes our constitutional republic from the volatile majoritarianism that destroyed the democracies of ancient Greece. To rewrite the rules of our judiciary would reduce legal limits on the power of Congress and the president, rendering all legal rights insecure—particularly the rights of those who are already most vulnerable. That would transform our political system into a free-for-all in which nothing shields the individual from the power of political authorities. And that would effectively end the promise of our Constitution.

Timothy Sandefur

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government. He litigates important cases for economic liberty, private property rights, free speech and other matters in states across the country.

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