How to Actually Fix SCOTUS

Judge Gorsuch of the Tenth Circuit Court of Appeals has recently been confirmed as Justice Gorsuch of the United States Supreme Court. Since then, there have been laments in the pages of The New York Times that the Supreme Court is “broken,” while others insist that the Court’s politicization and status as a political football is simply par for the course. Most interestingly, there have appeared think-pieces about how to fix it. I agree. The Court is broken, yes, but not in the way most (especially those on the political Left) believe it is. I also do not think that we are doomed to accept as normal the far-too-frequent and near-apocalyptic clashes over the fate and direction of the Court that we’re so accustomed to seeing as a polity. There is indeed a way to fix the Court.

Vox’s Ezra Klein is one of the commentators who purports to have the solution. He writes:

The core problem here is the stakes of Supreme Court nominations: They’re too damn high. Candidates serve for life—which, given modern life spans and youthful nominees, can now mean 40 years of decisions—and no one knows when the next seat will open. … The result isn’t merely an undemocratic branch of government but a randomly undemocratic branch of government. … We need to deescalate Supreme Court fights. The most obvious way to do that is to limit terms. Holding justices to a 10-year, nonrenewable term would lower the stakes of any individual Supreme Court nomination as well as make the timing of fights more predictable.

align=”left” We the People must come to understand that the Court is a mere part of our constitutional order and that it does not stand outside of it as its omnipotent and omniscient keeper and enforcer.

In sum: nix life tenure and regiment seat openings for predictability’s sake. But Klein is wrong. What’s needed is not a wonky, technocratic tweak but something much more profound: a recommitment on the part of the nation as a whole to understanding the proper scope of the Court’s authority and its role in our constitutional republic. The ways Presidents Jackson and Lincoln conceived of the separation of powers and related to the Court will be invaluable in this pursuit. We must, in essence, relearn that the Court is not the last word on the Constitution and that to make it so is fundamentally opposed to the rule of law, the principle of the separation of powers, and the Constitution itself.

First, President Jackson. He is infamous for (among other things) having said of Chief Justice John Marshall, in the wake of Worcester v. Georgia (1832)—in which the Court held that the State of Georgia had no right to interfere in the affairs of the Cherokee nation—that he “has made his decision; now let him enforce it.”

Needless to say, such a statement, were it to be uttered by a president today, would undoubtedly spawn fevered accusations that he was being unfaithful to the Constitution, invite speculation about the possibility that strongman authoritarianism had taken up residence at 1600 Pennsylvania Avenue, and prompt persistent calls for his impeachment. Whether Jackson was right, substantively-speaking, to have arrived at his conclusion, one at odds with the Court’s holding, is irrelevant. What is relevant is the realization that the three branches of the federal government are co-equal and that, therefore, each has the right to interpret the Constitution for itself. Indeed, they are sworn to do so as part of their oaths of office.

We have, regrettably, forgotten this essential truth—a vital expression of the principle of separation of powers—and replaced it with judicial supremacy. This is an alien and anti-constitutional doctrine which illicitly invests the Court with the sole authority to interpret the Constitution and bind the other branches and the sovereign citizenry to its interpretations, irrespective of how vacuous, illogical, and immoral they may be. But this is wrong, and Article VI sets the record straight: “This Constitution … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby …” All branches are duty- and oath-bound to serve the Constitution—not their own parochial, institutional interests or the personal agendas of their members—above all.

Second, Abraham Lincoln understood this rightly as he courageously rejected the Court’s odious ruling in Dred Scott v. Sanford (1857), which held that blacks could never be citizens, maintaining that the Court’s ruling was binding only on the parties to the case. Beyond that, however, is something deeper that motivated Lincoln’s action. He firmly believed that the Court’s decisions must have their basis in valid precedent as well as the text, structure, logic, purpose, and history of the Constitution itself, otherwise “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Dred Scott was an act of raw judicial will and fundamentally inimical to the rule of law, the separation of powers, the Constitution, and basic morality. Lincoln did well to ignore and refuse to enforce it.

We the People must come to understand that the Court is a mere part of our constitutional order and that it does not stand outside of it as its omnipotent and omniscient keeper and enforcer. Standardizing, as Klein and others would have us do, when seats open up on the Court—some of the members of which firmly believe that it is their duty to ratify emerging, or hasten into being, social “progress” even if that means torturing the Constitution until it says what they wish it would—will do nothing except to have the weightiness of nominations to its bench puncture the public’s consciousness at predictable intervals, rather than at random ones. But lawlessness that adheres to a schedule is no virtue.

The way to fix the Court is to stop treating it as the infallible transmitter of the meaning of the Constitution and its provisions. Part of that means reeducating the nation’s citizens as to how their government ought to function, and part of that means the other two branches—particularly Congress—must reassert themselves as co-equal partners in the job of upholding the Constitution and, thereby, preserving the sovereignty of the people. Unless and until this happens, our sovereignty will continue to be eroded and undermined by dangerous, naked will-to-power opinions of a few unelected and unaccountable members of our black-robed, secular-judicial clerisy.


About Deion A. Kathawa

Deion A. Kathawa is an attorney who hails from America’s heartland. He holds a J.D. from the University of Notre Dame and a B.A. from the University of Michigan-Ann Arbor. He is a 2021 alumnus of the Claremont Institute’s John Marshall Fellowship. Subscribe to his “Sed Kontra” newsletter.

Support Free & Independent Journalism Your support helps protect our independence so that American Greatness can keep delivering top-quality, independent journalism that's free to everyone. Every contribution, however big or small, helps secure our future. If you can, please consider a recurring monthly donation.

Want news updates?

Sign up for our newsletter to stay up to date.

17 responses to “How to Actually Fix SCOTUS”

  1. So what do we do? Any attempt to limit SCOTUS will be overridden by SCOTUS.

    It will take a constitutional crisis to change this terrible precedent.

    • Under Article III, Congress could limit the existing Supreme Court to its original jurisdiction and create a new court whose jurisdiction would be limited to ruling on constitutional matters. Congress could prohibit this new constitutional court from using stare decisis and require that all constitutional questions be decided de novo and based solely on the text of the Constitution. The German supreme constitutional court is one existing court based on such a model.

  2. An outstanding article. My congratulations, and thanks, to the author. The judicial supremacist lie is a coup d’etat against our constitutional form of republican self-government, and if a majority of the American people don’t wake up to that fact soon, this country cannot possibly be saved.

    Thomas Jefferson:

    “Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them. . . . The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” (Letter to Abigail Adams, September 11, 1804)

    “Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given—according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” (Letter to Judge Spencer Roane, Sept. 6, 1819)

    “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so . . . and their power [is] the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.” (Letter to William Jarvis, Sept. 28, 1820)

  3. Good article … I would have added that any ‘solution’ proposed by liberals is so far beyond nonsensical at the put any skit on SNL or any other comedic enterprise to shame.

  4. Fixing SCOTUS is easier than that, actually. All we need are a few governors willing to enforce the 10th. When SCOTUS holds on something outside the powers which the States granted to the feds: abortion, marriage, bathrooms, gender issues, sexual orientation, etc, the governor needs to tell SCOTUS, “Thanks, but as no one gave you the authority to hold on that issue, we’ll ignore your ruling. Have a nice day.” We HAVE the laws and Constitution required to get back to where we were and need to be. All we need is to ENFORCE them – not change stuff all around. (And if ANY change needs to be made, it’s to return to the original franchise, absent gender and race issues; no reason exists to allow moochers to vote on how much they can mooch.)

  5. If there are more like Deion Kathawa presently hiding out in universities the nation may yet be saved.

    Courts and judges became politicized when Democrats figured out that getting friendly left-wing judges to implement their agenda would be a lot easier than trying to persuade Americans to accept it willingly. When I was in law school, several decades ago, it was the common belief that courts only decide “cases and controversies” between litigants. Courts were to constantly make pronouncements of legal principles and leave public policy making to the people through their representatives in the elected branches. Courts were never ever to decide political questions.

    Judges themselves were thought to be the keepers of this faith by exercising judicial restraint. That trust was soon betrayed. Now we have federal judges who think they have the power to override the president in deciding immigration enforcement policy. This even though the Constitution gives him that power and the Congress has expressly recognized it by statute.

  6. President Jackson did not say or write that Chief Justice Marshall “has made his decision; now let him enforce it.”

    • “though he did write something like it”? Then what’s the big deal? They didn’t have recording devices in 1840, so “writing” was the same as “saying,” wasn’t it? And the real issue is, of course, the idea. The real issue is that in the early part of American history, barely 50 years after America became a functioning nation, its top executives saw a serious problem with the way it was being administered. So whether it was Jackson or someone else who made that statement, the idea was still valid, which was that SCOTUS was never intended to be the final statement on the law, but it had unconstitutionally usurped that power and Congress, then as now, did not have the courage to fight against it.

      • Jackson actually wrote, to John Coffee on April 7, 1832, quoted in James Marquis’s Andrew Jackson: Portrait of a President, page 305. “The decision of the supreme court has fell still born, and they find it cannot coerce Georgia to yield. … If a collision was to take place between them [the Indians] and the Georgians, the arm of the government is not sufficiently strong to preserve them from destruction.” Our author wished to demonstrate his knowledge by “quoting” Jackson, but unhappily, he paraded his ignorance instead. When people use phony quotes, I discount of the rest of what they write. Our author’s ideas may or may not have merit, but how should I know how seriously he takes them when he cavalierly mixes facts with fiction.

  7. “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

  8. Law has been replaced with sophistry and the thin veneer of legalism over Tyranny. “Civil Rights” began this descent. Its Unconstitutional concept of “protected classes” made EQUAL JUSTICE IMPOSSIBLE. Some groups TRUMP others, and even serious criminal acts are reduced for some and new fake crimes based on sad emotionalism that hides obvious PREJUDICE are now the rule rather than the exception.
    I do not consider the Feds to be a legitimate government. Legitimate National Government maintains infrastructure, protects the interests of law-abiding citizens and provides equal justice under the law. None of these conditions are being met, and its not ACCIDENTAL IS IT?

  9. Excellent article, and sound truths. We lack the rule of law, for that ‘law’ is changed on a case by case basis at the whim of but one branch of the Government.

    The solution cannot be more law.but political leaders in the executive and judicial branch willing to stand up to the would be Oligarchs on the court and refuse to lend them their power. This unfortunately requires practical limits. which the laws of the 50’s and 60’s enabling anyone to bring almost any matter before the Federal court system impractical.

    Congress empowered the court by making every man an executive over every other man with the power to bring them before said court. The abolition of the 11th amendment in the early 20th century by judicial run around made even state Governments subservient to the military force of the Federal Government as commanded by the Federal court system.

    In many respects as much as we might not agree with George Wallas’s stand against de-segregation it was in fact the last practical defense of Federalism, defeated by the conservancy of the Executive and judicial branch of the Federal Government.
    A conspiracy of law which has in the intervening years led to the compete domination of all levels of the Government by the autocratic dictates of 5 Federal Employees in black robes. Agree or disagree with the merits of segregation and the legitimacy of the Court edicts to end the same, The power to do so was revolutionary and crippling of any Constitutional system of law.
    Yet this insolent is correctly pointed out by those wishing to express the virtues of unchecked power and the evils of decentralization as to enable other evils. Never-mind that the problem was not so long before the compete reverse only then it was those that respected the division of power who prevailed thus permitting a place for blacks to be free and equal(up north).

    The passions of the mob which now ever so effectively govern our Government thou the advent of mass media, change on a whim, and are not at all consistent with what is Good, right, or fair. The system of Government which keeps power local and Government divided between co-equal branches is designed to insure that preference is towards the inherit liberty of no centralized action rather than action.
    For it is far preferable to risk that there be only one place in which men are free than none at all.

  10. And we do that . . . how, exactly? Good idea, but here are some other possibilities. 1, Amend the Constitution to term-limit ALL federal judges and SCOTUS justices to 20 years, total. 2, Amend the Constitution to allow RECALL of judges/justices whose decisions are heinous beyond contempt. Make it difficult, so it won’t be done at a whim. But make it possible. And 3, allow Congress to override SCOTUS decisions with 3/4 votes. This will return a balance to government. Nowhere in the Constitution does it say that SCOTUS is the final word on our laws. They set a precedent when they took that role on themselves in 1803. Since then we have let them get away with that unconstitutional behavior. It’s time we took it back. And while we’re at it, since when does a “federal district judge” have the right to stay a presidential order, as we see happening all the time today? It’s time to fix that situation, too, and require, at the least, a panel of judges to counter a president’s order.

  11. In the early 70’s a liberal, feminist history professor made a more or less similar point. She said that the SCOTUS is not the only source of the law and legal interpretation. At one level she was obviously correct – Congress, the state courts, dissenting Justices, lower court judges, the bureaucracy, for good or ill, all have a say. Her point, however was intended to be more far reaching. I believe she meant that in only a few cases, as mentioned in the article, were the other co- equal branches able to have their say and, more importantly, make their say stick. Between Jackson, Lincoln & the present, the lawyers have taken over. Chief Justice Marshal’s Marbury v. Madison tour-de-force, the focus of the law schools on appellate court cases as well as the legal priesthood’s tendency to arrogate power to itself have all but banished any other sources of final or co-equal, authoritative legal interpretation.