The Supreme Court isn’t broken

President Joe Biden has made judicial reform a hallmark of his final months in office. In a recently published op-ed, he outlined three proposals related to the Supreme Court: a constitutional amendment addressing presidential immunity, the revocation of lifetime appointments to the court, and the imposition of a new code of conduct. The latter two ideas represent direct attacks on the independence and integrity of the nation’s highest court.

A constitutional amendment that outlines with more specificity exactly what presidential immunity amounts to is certainly within the scope of legitimate political activity. The barriers to passing a constitutional amendment are quite significant, however, making the call for the “No One Is Above the Law” amendment more theatrical than serious.

Sadly, the court has had to address presidential behavior with more scrutiny than at any time in our history. But the court’s decision in Trump v. United States is another step in a long process of sorting out what constitutes core and official acts and what presidents should have the independence to do. This was a historic decision, but it was one made necessary by the bad behavior of executives, politicians, and prosecutors from across the partisan spectrum.

Advocacy for a constitutional amendment has the virtue of superficially respecting the Constitution, even if only by calling for it to be corrected. President Biden’s other proposals are assaults on the court presented under the guise of concern for “the guardrails of democracy.” Federal judges enjoy lifetime appointments precisely because of the temptation for politicians to pressure them to make decisions that are aligned with narrow political interests rather than the standards of justice. Supreme Court justices should not feel threatened when making unpopular but nevertheless proper and appropriate decisions. But human nature being what it is, perceptions matter and the overt as well as covert attempts to influence court decisions and reasoning must be combatted.

As Alexander Hamilton wrote so perceptively in Federalist 78, “If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Lifetime appointments are just one of the ways that judicial independence is to be protected. The justices should also be protected in their persons and their property from protestors and bad actors.

Courts are not put into place to make decisions that are popular or that favor majoritarian calculus. They are, rather, entrusted to preserve the rights of the few, or even the one, against the tyrannical demands of the many and the powerful. This basic understanding of the role of the courts echoes the fundamental Biblical mandate for judgment: “You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor” (Leviticus 19:15).

There are, of course, already constitutional means to remove a justice who has been corrupted or has otherwise acted in a way that warrants such action. Article III of the Constitution states that judges “shall hold their Offices during good Behaviour,” and there is ample precedent and established procedure for impeaching judges. That’s how the Constitution has set up the proper way to hold justices accountable while respecting the separation of powers.

The president says that the Supreme Court is “mired in a crisis of ethics” and refers to a lack of public trust in the court. But each of the three areas President Biden hopes to address in his proposed reforms reflects a fractured political system rather than a problem with the Supreme Court.

President Biden doesn’t mention that the judiciary is still the most trusted branch of government and that Congress and the executive branch currently have historically dismal approval ratings. The fact that the courts are also at historically low (but relatively better) levels of trust shows that these kinds of partisan attacks are having an effect. Stoking such distrust in the courts is indeed dangerous.

The president also seems to be confused in thinking that the Supreme Court’s health and integrity are merely a matter of popular approval. Our nation’s courts are called to do what is right and not what is politically expedient. President Biden’s proposed changes would threaten the judiciary’s ability to fulfill its sacred and constitutional duties. Americans should discern the motivations behind attacks on the Supreme Court and reject them in the exercise of their own constitutional powers—including the power voters exercise in the voting booth come November