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.
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.