Written by: Michael Shalonov
Edited by: Sean Tonra
"Well, if one party could do it, I guess another party could do it. On the surface, it seems to me you start changing all these things around and people will lose trust in the court"
- Stephen Breyer, Associate Justice of the U.S. Supreme Court (1994-Present)
The Supreme Court of the United States is facing its most unprecedented and controversial era in modern history. As a result of the consequential 2016 election, three new originalists have joined the bench, further solidifying the conservative grip over the court. The six to three conservative majority has already left a ripple in the country’s political environment, from refusing to block the Texas abortion ban to reinstating former President Trump’s remain in Mexico policy for migrants. Having overseen numerous consequential decisions and the 2020 presidential impeachment, Chief Justice John Roberts Jr. is often regarded as the median of the court since he has sided with both ideological wings. Nevertheless, with the appointment of originalist Amy Coney Barrett, the conservative wing no longer require Roberts to side with their opinions. Rulings like the refusal to block the Texas abortion law, which had Roberts dissenting, exemplifies a court with very minimal moderation. This reality has prompted President Biden, congressional Democrats, and liberal activists to seek reform in the court’s framework, whether by imposing term limits or expanding the number of seats.
Having won the popular vote in the last seven of eight presidential elections, Democrats have every reason to feel misrepresented on the high court. Nevertheless, tampering with the least partisan branch of government intended by the founders to be free from political pressure would be a drastic mistake. In his Federalist Papers, James Madison stresses “…constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process” (Linder). By tying the framework of the court to political bargaining, Democrats would be reducing the institution to a battleground of partisan factions. Bending the will of the Supreme Court to accommodate political interests would undermine its sacred independence from other branches of government. President Biden’s commission on the Supreme Court is looking at the “…membership and size of the court; and the Court’s case selection, rules, and practices." Undertaking these reforms would be a deliberate attempt to politicize the court since it would install numerous party-friendly folk and restrict how judges fulfill their interpretative obligations. The work justices undertake and the colleagues they interact with would be at the whim of the ruling party’s vision rather than the constitution which organized the body.
Also, any successful tampering of the high court would set a precedent that the opposing side could easily exploit. When they eventually return to federal power, Republicans will have the simple means of using liberal schemes like court-packing to overpower any previous appointments made by Democratic Presidents. Supreme Court Justice Stephen Breyer nicely puts such a reality saying, “What goes around comes around. And if the Democrats can do it, the Republicans can do it” (Williams). Following the passing of the late Ruth Bader Ginsburg, Breyer has become the leader of the liberal wing on the court. Both Breyer and Ginsburg have pushed back against any political schemes like court-packing since it would taint the only institution that has a non-political allegiance to the Constitution. People would lose trust in the ability of the court to perform its obligations since alternating political parties in power would always seek to bend the institution their own way. That is why the Supreme Court must be protected from partisan initiatives that put politics over the constitution.
The fact of the matter is elections have consequences. The 2016 electoral college victory for Donald Trump gave him every right to appoint three Supreme Court justices. President Biden has the same mandate in the next four years when the opportunity arises. Launching any politically driven reforms like court-packing or term limits would undoubtedly make the judiciary no less political than Congress. Public anger and frustration towards the overt originalist court are justified yet altering the layout without influencing the interpretative work of the justices is simply not possible. At the moment, roughly seventy percent of the time, the conservatives and liberals vote together in the majority. Judicial independence is alive and vibrant. America must avoid reorganizing the court for political reasons since it would subvert the justices’ sole boundness to the constitution. Precedence is so predominant across the federal government that any one-time provision of the Supreme Court would cause a long-term ripple effect in its ability to operate as both political parties would fight to mold it. The need to protect the Supreme Court against political antics has never been clearer as the third federal branch faces its greatest political threat since the years of Franklin D. Roosevelt.
[The views expressed in this article are those of the author and the author alone; they do not necessarily represent the views of all members of the first RULR Editorial Board and Rutgers University.]
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