Hearing on “Perspectives on Court Reform”

Testimony Courts

Hearing on “Perspectives on Court Reform”

July 20, 2021 About an hour read
John Malcolm
Vice President, Institute for Constitutional Government
John is vice president for the Institute for Constitutional Government and director of the Meese Center for Legal and Judicial Studies.
The Presidential Commission on the Supreme Court of the United States is a misguided and potentially dangerous endeavor because it will feed the misperception that the justices on the Supreme Court are just partisans and politicians and lend credence to attempts to manipulate the design and structure of the judiciary in the hopes that it will produce decisions that satisfy a particular political agenda. The only reason this Commission was established is because former President Donald Trump appointed three justices to the Supreme Court of the United States during his one term, and that prompted President Joe Biden to declare when he was on the campaign trail that the Supreme Court “is getting out of whack.” If the Senate had confirmed Merrick Garland in 2016 and a President Hillary Clinton had named the replacements for Justices Anthony Kennedy and Ruth Bader Ginsburg—thereby resulting in a six-to-three split in favor of Democrat-appointed justices, those now insisting on “reforming” the Court would not be saying that the Court is “out of whack.”

John G. Malcolm

Vice President, Institute for Constitutional Government,
and Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow,
Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

Written Testimony before the Presidential Commission
on the Supreme Court of the United States

July 20, 2021

Co-Chairs Bauer and Rodriquez and distinguished members of the Presidential Commission on the Supreme Court of the United States:

I am the Vice President of the Institute for Constitutional Government and Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.REF I appreciate the opportunity to appear before you today to offer my perspective on the task you have been assigned to perform, specifically to “provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.”REF

I congratulate you all on being appointed to this prestigious Commission, a place each of you has earned through your professional achievements. I know a few of you personally and hold you all in high regard. I hope, then, that you will not take it personally when I say at the outset that I think this entire endeavor is misguided—indeed, potentially quite dangerous—because it will feed the misperception that the justices on the Supreme Court are just partisans and politicians in robes and that it is okay to manipulate the design and structure of the judiciary in the hopes that it will produce decisions that satisfy and fulfill a particular political agenda.REF

There is no crisis that needs to be addressed. Let’s face it: The reason this Commission was established is because former President Donald Trump appointed three justices to the Supreme Court of the United States during his one term, and that prompted President Joe Biden to declare when he was on the campaign trail that the Supreme Court “is getting out of whack.”REF Does anyone believe that those now insisting on “reforming” the Court would still be saying that the Court is “out of whack” if the Senate had confirmed Merrick Garland in 2016 and a President Hillary Clinton had named the replacements for Justices Anthony Kennedy and Ruth Bader Ginsburg—thereby resulting in a six-to-three split in favor of Democrat-appointed justices? I don’t think so.

Moreover, while you all have distinguished yourselves throughout your careers, this is hardly an ideologically balanced group. By my estimation (and it is just that), those with strongly liberal leanings outnumber those with conservative leanings by roughly four-to-one, with a few centrists in the mix. While this may pass as acceptable (or even generous) for a law school faculty these days, it is hardly ideal for a Commission exploring and potentially recommending fundamental changes to the one branch of the federal government that is supposed to be above and immune to politics. But even this skewed ratio is too much for some liberal groups that have expressed their disgust that there are any members with conservative leanings serving on this Commission.REF This does not bode well for broad public acceptance of the Commission’s analysis or the recommendations you may care to offer in your final report.

Saying that I do not agree that the Supreme Court is “out of whack” does not mean that I agree with everything the Supreme Court—even the current Supreme Court—does. Far from it. As Justice Robert Jackson once quipped, “We are not final because we are infallible, but we are infallible only because we are final.”REF For anybody who wants proof that the Supreme Court is not infallible and is capable of erring—badly—all one needs to do is say the words Dred Scott,REF Plessy,REF or Korematsu.REF While these cases are universally reviled—and rightly so—we all could name cases in which a majority of the Court wrote an opinion reaching a result that we liked and others that we didn’t like. I am quite sure that there would be robust disagreement among some of you as to which cases fall into each of these categories.

This is just one of the reasons why it is important that any reform effort focus on the needs of the Supreme Court and the lower federal courts, not on any decisions that the Supreme Court has rendered or that it might render in the future. Reforms focusing on the needs of the court system would enhance the judiciary’s ability to function more effectively and efficiently. Doing so would also likely strengthen the credibility of the Supreme Court and the lower courts as institutions that protect our individual liberties and help to ensure that all branches of government, including the judiciary itself, adhere to their proper roles based on time-honored separation-of-powers principles.

Engaging in open-ended discussions about “reform” and “judicial accountability” without first identifying the defects that must be remedied, on the other hand, will invariably lead to the charge that this Commission as a body is acting in a purely political fashion with a distinct ideological bent. Such an approach could easily foster doubt and dissatisfaction with the courts, further eroding the public’s confidence in the courts as a trustworthy, apolitical, and independent branch of government that can be relied upon to interpret and apply the law fairly and faithfully.

Justice Sandra Day O’Connor put this quite well:

Put simply, judges must be accountable to the public for their constitutional role of applying the law fairly and impartially. Judicial accountability, however, is a concept that is frequently misunderstood at best and abused at worst. It has become a rallying cry for those who want in reality to dictate substantive judicial outcomes.REF

The reform proposals that have been offered by the witnesses who have appeared before you and who have submitted written testimony are, to my mind, on a spectrum in the sense that some would do greater damage to the independence and credibility of the Court, while others would do little to no harm. I will focus on three of them—Court-packing, jurisdiction limitations, and term limits—while offering a couple of proposals of my own for your consideration.


The biggest threat to the independence of the judiciary is the proposal to pack the Court. Back in 1983, then-Senator Joe Biden referred to Court-packing as a “bonehead idea.”REF He was right.

There are currently six justices on the Court who were appointed by Republican Presidents, three of them by President Trump. Not surprisingly, legislation has been introduced in the House and SenateREF, sponsored by Democrats who agree that the Court is “out of whack,” that would add four justices to the Court—one more than President Trump got to appoint and just enough to ensure, at least for the time being, that the majority of the justices on the Court are appointed by a Democratic President. That is, of course, their right since the number of Supreme Court justices is established by legislation and is not enshrined in the Constitution.REF But while it may be their right, it is a bad idea.

While ignoring the fact that many, if not most, of the cases that reach the high court result in unanimous or nearly unanimous decisions,REF even though the issues involved sharply divided judges on the lower courts, the motives behind those calling for an increase in the number of justices are obvious and transparent. Displeased with some of the opinions issued by the Court, they are clamoring for the current Supreme Court to be replaced by a larger, more reliably liberal body that will be more likely to issue rulings in future cases that they like, regardless of the legal reasoning employed to reach those results.

The group Take Back the Court, for example, insists that Congress must add seats to the Supreme Court in order to “restore the right to vote, ensure reproductive freedom, protect workers, halt our climate emergency, and save democracy.”REF Immediately after the Supreme Court issued its opinion on the last day of the term in Brnovich v. Democratic National Committee, rejecting a challenge to two provisions in Arizona’s election laws, the Democratic Senator sponsoring legislation to pack the Court, stated that “we must expand the Supreme Court,” and a Democratic co-sponsor of the companion bill in the House stated, “And still some people have the nerve to question whether Court expansion is necessary. Expand the damn court.”REF

Harvard Law School Professor Michael Klarman went so far as to say that with an expanded Court, the Democrats could make sure that Republicans “will never win another election.”REF In fact, many autocrats, including Hugo Chavez of Venezuela, Recep Erdogan of Turkey, Viktor Orban of Hungary, and Daniel Ortega of Nicaragua, have used court-packing as a tool to disempower courts, thereby destroying their independence so that they could no longer serve as an effective impediment to whatever the “elected” rulers of those countries wanted to do. Is this the company we wish to keep?

Disagreement with this or that decision or even a series of decisions is the worst and most dangerous reason to “restructure” or “reform” the Court. I am sure, for example, that every member of this Commission would have objected had the Senate given in to the demands of the “Impeach Earl Warren” movement that arose after the Warren Court issued a series of decisions ordering school desegregation and expanding the rights of criminal defendants that rankled many conservatives, predominantly in the South.REF Significantly, although not surprisingly, those who claim that the Court is “out of whack” have failed to explain exactly how either the Supreme Court or the federal judiciary in general is “out of whack.”

If “out of whack” is defined by the number of judges appointed by a President, it is worth noting that although President Trump had great success appointing judges during his one term in office, he still appointed fewer judges than President Barack Obama appointed, albeit over two terms. While President Trump appointed one more Supreme Court justice than President Obama appointed, President Obama appointed 329 Article III judges compared to Trump’s 234.REF In terms of the appellate courts, during his time in office, President Obama “flipped” eight of the 13 circuit courts with judges that were either an equal number of Democrat and Republican appointees or majority Republican appointees to majority Democrat appointees; Trump managed to “flip” two of them back. Today, a majority of the circuit courts have more Democrat-appointed active judges than Republican-appointed active judges on them.REF Yet no conservatives have proclaimed that the circuit courts are “out of whack.”

If “out of whack” is defined as an imbalance between justices appointed by different parties, then surely we should take into account the fact that there have been various times in our nation’s history when the balance was far greater than the current six-to-three split.

By the time Thomas Jefferson, a member of the Democratic-Republican Party, became President in 1801, every member of the federal judiciary, including all six members of the Supreme Court, had been appointed by Presidents George Washington and John Adams, members of the Federalist Party. There was a call at that time by some in Congress to pack the Court. That effort failed, as I shall discuss in greater detail below. But while Jefferson did not pack the Court, he and his Democratic-Republican allies in Congress did restore the number of justices to six to undo the effects of recently passed legislation that reduced the number of justices from six to five upon the next vacancy—a blatant last-minute attempt by President Adams and the Federalists to prevent Jefferson from naming a new justice to the Court the next time a vacancy occurred. The number of justices was not increased to seven until 1807, although even after this change, the majority of justices were still Federalist appointees.

After President Franklin Roosevelt’s Court-packing plan failed, he went on to appoint eight out of the nine justices on the Court (Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, James Byrnes, Robert Jackson, and Wiley Rutledge),REF and when Justice Owen Roberts, a Hoover appointee, retired in 1945, President Harry Truman appointed Justice Harold Burton. So all nine justices were Democrat appointees, and it stayed that way for a decade until 1955 when President Dwight Eisenhower appointed Justice John Marshall Harlan. When Eisenhower took office in 1953, there were no calls to “Pack the Court.”

More recently, from October 1991 until August 1993, from the time that Justice Thurgood Marshall retired until Justice Ruth Bader Ginsburg was appointed, there were eight Republican appointees on the Court (William Rehnquist, Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David Souter, and Clarence Thomas) and only one Democrat appointee (Byron White). Again, there were no calls from the Clinton Administration to “Pack the Court.”

As I previously mentioned, there have been two efforts in our nation’s history to pack the Court, both of which, fortunately, failed.

Although the Democratic-Republicans in Congress thwarted John Adams’ attempt to deprive Jefferson of the opportunity to fill a future vacancy on the Court by restoring the number of justices to six, there were those in Jefferson’s party who wanted to go further. Representative John Bacon of Massachusetts said that he “wish[ed] to add two or three more judges to the Supreme Court.”REF

The Federalists, as expected, objected to this proposal,REF but none of Bacon’s fellow Democratic-Republicans went along either. To the contrary, Representative John Randolph of Virginia argued forcefully: “Will not the history of all Governments warrant the assertion, that the creation of new and unnecessary offices, as a provision for political partisans, is an evil more to be dreaded than the abolition of useless ones?”REF Senator John Ewing Colhoun of South Carolina stated:

Shall the Legislature with a strong arm, and by an assumed power, destroy their independence, and thereby their existence as one of the pillars of the Constitution? In this situation of your Judiciary, will the streams of justice flow equally to the habitation of the rich and cottage of the poor? No man who knows human nature will answer in the affirmative.REF

And Senator John Breckinridge of Kentucky added: “No increase of courts or judges could be necessary or justifiable, unless the existing courts and judges were incompetent to the prompt and proper discharge of the duties consigned to them.”REF

Frustrated with some adverse rulings by the Supreme Court and fresh from his landslide re-election in 1936, President Franklin Roosevelt attempted to pack the Court by introducing a plan that would have added up to six more Supreme Court justices, one for each current justice over the age of seventyREF who decided not to retire within 30 days after the law went into effect. He offered two reasons for this, both problematic. Roosevelt said that he wanted to appoint justices who would “enlarge constitutional power” so that he and Congress could address “extraordinary conditions” without interference from the Court.REF He also suggested that several of the justices were simply too old to carry out their duties on the Court, stating in his official message to Congress that he was concerned about “the question of aged or infirm judges” and expressing his belief that “lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions.”REF

Roosevelt had reason to be optimistic that his Court-packing plan would succeed: The Democrats outnumbered Republicans 76 to 16 in the Senate and 334 to 88 in the House, with four Senators and 13 Congressmen from other parties usually voting with the Democrats.REF But it did not succeed.

On June 7, 1937, the Senate Judiciary Committee issued a report stating that Roosevelt’s plan “in its initial and ultimate effect would undermine the independence of the courts” and would tend “to expand political control over the judicial department.” The report continued:

Even if every charge brought against the so-called “reactionary” members of this Court be true, it is far better that we await orderly but inevitable change of personnel than that we impatiently overwhelm them with new members. Exhibiting this restraint, thus demonstrating our faith in the American system, we shall set an example that will protect the independent American judiciary from attack as long as this Government stands.REF

Quite so. The following month, 53 Democratic Senators joined 17 Republicans in voting to send the bill back to the Judiciary Committee, effectively killing it.REF

Any attempt to pack the Court would undoubtedly be met with tit-for-tat retaliation in the future. In 2017, Republicans had control of the White House and both Houses of Congress and could have packed the Supreme Court then, utilizing the same procedures that some Democrats now are contemplating using, but they didn’t. If the Democrats pack the Court now, it is highly likely that the Republicans would not show such forbearance the next time they are in control, and who could blame them? That is, after all, exactly what happened with the removal of the filibuster for judicial nominations.REF

As Alexander Hamilton stated in Federalist No. 78:

[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. 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….REF

Packing the Supreme Court would do incalculable damage to its independence and credibility and would dramatically weaken the Court’s ability to serve as an effective check on the executive and legislative branches of government.

Jurisdictional Limitations

Another reform proposal that has occasionally been offered to try to curb some of the Court’s counter-majoritarian instincts and to enhance democratic authority over the law is jurisdiction-stripping,REF which is designed to insulate certain laws from a statutory or constitutional challenge.REF Congressional authority to do this would derive from the Exceptions Clause in Article III, Section 2, Clause 2 of the Constitution, which provides:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.REF

Some legal scholars have argued that the Exceptions Clause gives Congress plenary authority to decide what cases the Court can consider,REF and other scholars have argued that Congress could not deprive the Court of the opportunity to consider a constitutional challenge to a law.REF I will not attempt to resolve this dispute, which has been going on for decades. From my perspective, the important point is that we have been fortunate in not having to resolve this knotty constitutional issue—at least not yet.

The threat of imposing jurisdictional limitations, especially in cases involving interpretations of the Constitution, has a lamentable history in our country. During the era of the Warren Court, there was virulent hostility to many of the Court’s rulings and subsequent attempts to strip the Court of jurisdiction to decide cases involving racial desegregation, religious freedom, reapportionment, and the rights of political subversives and those accused of committing a criminal offense. Some of these efforts came close to succeeding.REF

While some on the left might favor, for example, stripping the Court of jurisdiction to consider a case seeking to overturn Roe v. Wade, there are some on the right who might favor stripping the Court of jurisdiction to consider a constitutional challenge to a state or federal statute that would effectively overturn Roe v. Wade. What’s sauce for the goose is sauce for the gander. Or, as Alexander Hamilton more elegantly put it: “Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day.”REF

Where this would lead is anybody’s guess, but one could surmise that it would most likely be used to insulate laws that are politically popular but that implicate the rights of minorities, religious dissenters, and the like. Jurisdiction-stripping would radically alter the separation of powers by enhancing executive and legislative power at the expense of the judiciary. Most alarmingly, denying the Court the ability to decide whether a particular law violates the Constitution would effectively end the judiciary’s ability to serve as the guardian of the rule of law and to ensure that the Constitution remains “the supreme Law of the Land.”REF

Term Limits

Of the three proposals that I will discuss, term limits for Supreme Court justices has the benefit of being the least objectionable. Because Article III, Section 1 of the Constitution provides that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,”REF it will most likely require a constitutional amendment to impose term limits.REF This is a virtue, not a vice, since it would take some time, would apply to all future appointees to the Court regardless of which party’s candidate occupies the White House, and would require broad bipartisan acceptance by both the legislature and the general public.

Many respected scholars across the political spectrum have supported term limits, usually in the form of staggered, non-renewable, 18-year terms for future Supreme Court justices, which would result in a vacancy every two years.REF Such a proposal, at least in theory, would permit every President to name two justices during a four-year term.REF Term limits might also lessen the incentives for Presidents to nominate comparatively young nominees because of their projected length of service on the Court. Those who favor term limits also believe that the regularity of appointments would help to tone down harsh rhetoric surrounding Supreme Court vacancies and de-escalate the bitterness of the judicial confirmation process.REF

While I certainly do not dismiss these potential benefits out of hand, I am skeptical that term limits would be the panacea its proponents hope it would be. Each of the justices would still wield considerable power, and 18 years is still a significant period of time. Moreover, tying future vacancies and the Court’s personnel to the results of each presidential election might cause the partisan rhetoric to be intensified and lead to confirmation hearings that are even more contentious than they are now. Would further cementing the Supreme Court as an election issue be a net positive in terms of increasing the credibility and independence of the Court? I suspect the answer is “probably not.” As long as our country remains so politically polarized, I doubt that term limits would depoliticize the process, especially if the White House and the Senate are controlled by different parties, since there is no guarantee that the Senate would act on a nomination (unless some mechanism was built into the amendment itself that would force the Senate to act) until after the next election.

There are other problems too. Since the current justices “hold their offices during good behavior” (meaning they have life tenure unless impeached and removed from office), the term limits presumably would apply only to those who are appointed to fill future vacancies. It is unclear how such a disequilibrium among the current and future justices would be received in today’s political environment. Hypothetically speaking, if Justice Stephen Breyer were to retire at the end of the next term, would the Democrats be satisfied to replace him with a term-limited justice knowing that the six current Republican appointees to the Court would still enjoy life tenure?REF I doubt it.

Further, while staggered term limits might lessen the likelihood of a strategic retirement because a replacement justice presumably would only fill the unexpired term of the retiring justice, this would not do anything to address a situation in which a justice appointed by a President from one political party dies while a President of the opposite political party is in office. Even if the person appointed to fill that vacancy only served for the remainder of the deceased justice’s term, that President would still get to fill three vacancies during that term.REF

Moreover, if term limits are so compelling, why not extend them to all federal judges? If this is being done because critics believe that the Supreme Court is too anti-democraticREF and too disconnected from current mores, why not have shorter terms? Why not switch to a system in which federal judges are elected, which is how state court judges are chosen in roughly half the states in this country?REF Is this the path we want to go down?

The Constitution has never been amended to regulate the institution of the Supreme Court, and we should be cautious about amending it for that reason now. In Federalist No. 49, James Madison acknowledged that “a constitutional road to the decision of the people, ought to be marked out, and kept open, for certain great and extraordinary occasions.” He cautioned, however, that:

[I]t may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.REF

Other Reforms

Although I am not sure there is much that you can do about this, there is one proposal that I would offer that, if adopted by the Senate, would help to improve the function and independence of the federal courts in this country. As you are all well aware, the Senate has an informal tradition, sometimes referred to as a “courtesy,” called the “blue slip” process, whereby the Chairman of the Senate Judiciary Committee will send a blue-colored form to the two Senators from the state where a judicial nominee will serve, soliciting their views about the nominee.REF Each Senator can then either return the blue slip, indicating his or her support for or disapproval of the nominee, or withhold the blue slip, which is usually interpreted as indicating disapproval. Although the practice has varied from time to time about how the Chairman treats a withheld blue slip for circuit court nominees, since such nominees, if confirmed, would sit on a court that has jurisdiction over several states, the practice has always been to treat a “negative” blue slip as a one-person veto of district court nominees.

The results are what you would expect. Democratic Senators make robust use of the blue slip process during Republican Administrations, and Republican Senators make robust use of the process during Democratic Administrations. This has frequently resulted in “judicial emergencies.”REF When President Barack Obama left office, 36 district court vacancies had been declared “judicial emergencies,” 29 of them in states with at least one Republican Senator. When President Donald Trump left office, 33 district court vacancies had been declared “judicial emergencies,” 32 of them in states with at least one Democratic Senator. This practice has an obvious impact on the ability of parties, especially in civil cases,">REF to get their cases heard in anything approaching a timely manner.

Persuading Senators who are from the opposite political party from the President to be less circumspect and more sparing in their use of the blue slip process would go a long way toward improving the administration of justice and would likely improve the diversity of the federal judiciary within districts and ultimately within circuits. I recognize that there is not much that this Commission or, for that matter, the President can do to “reform” this practice, but it is something I would urge you to highlight in your report.

All of this having been said, there is one reform I would urge you to consider: We should amend the Constitution to keep the number of Justices at nine. With the exception of a brief period from 1863 to 1869, the Court has had nine members since 1837.REF This has brought stability to the Court and to the nation, and that number should be fixed in the Constitution and not subject to the direction in which the political winds happen to be blowing at any particular moment. On that score, I stand with Justice Ruth Bader Ginsburg, who said shortly before she passed away, “Nine seems to be a good number.”REF


Those individuals who are demanding reform may be upset by the current composition of the Court, and they can certainly cite decisions that have been issued that they do not like. In part, this is an inevitable byproduct of the fact that the Supreme Court and the judiciary in general have claimed for themselves the authority to decide controversial issues that I believe (and I am certainly not alone in this view) are not covered by the Constitution and were properly left to the people and their elected representatives to resolve for themselves – for good or ill.

Mind you, a cogent, if not compelling, argument can be made that, on balance, those with liberal views have gained more from this judicial intrusion than those with a conservative bent have gained.REF But even though it is possible that conservatives might benefit more in the long run from some of the proposals that you are considering, I think it is bad for the country to have the Supreme Court treated like a political football and am content to rely on Congress to correct the Court when it errs in a case involving statutory interpretation and on the Court itself (or the Article V amendment process) to correct any errors it makes in cases interpreting the Constitution.

During a recent speech at Harvard Law School, Justice Breyer said that the Court’s “authority, like the rule of law, depends on trust, a trust that the Court is guided by legal principles, not politics.… Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”REF

There have been times when the Court’s credibility has proven to be invaluable, such as the time when the Court proved to be an insistent yet stabilizing influence during the whole school desegregation effort following the Court’s decision in Brown v. Board of Education. The Court spoke. Some agreed, and some didn’t, but they all ultimately accepted the decision, obeyed the ruling, and did not respond with massive displays of violence, primarily because the public had confidence in the Supreme Court and in our judicial system. The Court’s credibility has helped us through other tense times too. We should not take this for granted. Politicizing the Court, thereby creating the impression that the justices are just partisans in robes, risks undermining that credibility so that it won’t be there the next time we need it—and we will.

The Constitution is not a self-executing document, nor does it fully define the rights and responsibilities contained in it. At least since the time of Marbury v. Madison, in which the Court declared that “[i]t is emphatically the duty of the Judicial Department to say what the law is,”REF if not before, the Supreme Court has played a vital if not essential role in our society as the final arbiter of how our laws are to be interpreted and applied.

Although the President, Members of Congress, and state legislators are important constitutional players, they are popularly elected and therefore often cater to what the voters want, not what the Constitution requires. Although there certainly have been times in our nation’s history when our elected representatives have done a better job of protecting our rights, I do not believe that this has been true overall. And although it is likely, if not inevitable, that the justices on the Supreme Court will occasionally fall prey to partisan concerns that cloud their judgment, as an institution the Supreme Court and the lower courts are far better situated than elected officials or the public via the referendum process to resolve questions of law dispassionately and without resorting to self-interest or partisan considerations, especially in cases where the law favors somebody whose views may not be in vogue with the current zeitgeist.REF

Supreme Court justices take an oath to “support and defend the Constitution of the United States” and to “administer justice without respect to persons and to do equal right to the poor and to the rich and [to] faithfully and impartially discharge and perform all duties…to the best of [their] abilities.”REF We may not always like what the justices do, but I, for one, am prepared to give them the benefit of the doubt that they are honoring their oaths and interpreting our laws and the Constitution with fidelity to justice as each one sees it.

In his majority opinion in the seminal case of West Virginia State Board of Education v. Barnett, Justice Robert Jackson stated:

The very purpose of a bill of rights is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the Courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote, they depend on the outcome of no elections.REF

He was absolutely right. Judges should decide cases based on the law, not based on what is popular at any given moment in time. Any “reform” that diminishes the independence of the Supreme Court and its capacity to dispense “Equal Justice Under Law”—the very words emblazoned over the doors of the Supreme Court building—should be rejected.

Thank you for inviting me to testify before you today, and I look forward to answering any questions you may have.


John Malcolm
John Malcolm

Vice President, Institute for Constitutional Government