Saving the Supreme Court—and America’s constitutional order

Widespread recognition that the American political system needs reform is driving serious criticisms of our constitutional order. Often these conversations are fueled by partisanship rather than principle. The Electoral College, for instance, is increasingly under suspicion, and a number of steps have been taken and advocated to undermine the efficacy of this constitutional structure.

The Supreme Court, too, is coming under increasing scrutiny. A new poll from the Annenberg Public Policy Center indicates that widespread dissatisfaction with the court system is significant, and there is even some substantial support for radical changes. More than one third of those polled “say they might be willing to abolish the Supreme Court or have Congress limit its jurisdiction if the court were to make decisions they or Congress disagreed with.”

The Presidential Commission on the Supreme Court of the United States continues to deliberate over potential changes to the court. The next meeting is scheduled for tomorrow, by which time a new draft report is due. Discussions thus far have examined several possibilities for changes, including the possibility of expanding the number of justices on the court.

The history of this idea, known informally as “court packing,” is fascinating, but what advocacy for such change so often amounts to is that the Supreme Court, made up of “unelected” judges, is somehow unaccountable and undemocratic.

Limitations on the court’s jurisdiction or the expansion of the number of justices are different ways of addressing perceived anti-democratic shortcomings of the court. That our judicial system is not subject to the will of the majority, however, is an intended feature of our constitutional system—the very means by which we preserve judicial independence.

The Constitution of the United States was born into a world of ongoing controversy, and after its ratification, some elements have undergone significant transformation. Senators, for instance, were originally elected by state legislatures. This changed with the adoption of the Seventeenth Amendment in 1913.

In general, though, the American constitutional system was designed to prevent the tyranny of the majority, and those provisions (including the equal number of senators from each state and the institution of the Electoral College) are purposeful and critical to the integrity of the entire system and the defense of our freedoms. As the 19th-century historian Lord Acton observed, “It is bad to be oppressed by a minority, but it is worse to be oppressed by a majority.” In the latter case, the avenues for redress are limited, and the strength of majority opinion can be overpowering.

Fundamental to the American system is a balance of powers between the branches of the federal government. We have a Supreme Court at least in part to guarantee that the majority view will not crowd out or unduly burden minority groups and individuals. Our system recognizes the importance of self-government and the rule of the people, but it also provides checks on the passions of the people—even a majority of the people. Providing for judicial independence is essential to the preservation of our civil liberties.

Demands to expand the number of justices as a more democratic dimension of representation on the Supreme Court confuses justice with the simple will of the people. Such proposals ignore the wisdom of the founders, who drew on classical and Christian insights into the nature of humanity and the political order to craft a system intended to minimize the possibilities for one group—whether a majority or a minority—to predominate.

The 16th-century Genevan reformer John Calvin, for instance, examined the classical forms of government—rule by one, a few, or many—and argued that a mixed regime has the best potential to promote human justice: “men’s fault or failing causes it to be safer and more bearable for a number to exercise government, so that they may help one another, teach and admonish one another; and, if one asserts himself unfairly, there may be a number of censors and masters to restrain his willfulness.” In the same way, the American founders sought to balance powers between the executive, judicial, and legislative branches, giving voice to the people while protecting minorities from oppression.

To the extent that the will of the people is not adequately represented in our American political system today, the fault lies with the decadence and impotence of the legislative branch rather than with the structure and makeup of the Supreme Court.

If we need more democracy in our democratic republic, then we need to hold our democratically elected representatives to their sworn responsibilities. And we must protect those structural aspects of our constitutional order—including the Supreme Court—from destruction.