On Friday, April 9, President Biden announced that he will be launching a commission to study different aspects of the judiciary, and while I honestly do not expect the commission to favor something like packing the court, I am not a fan of flirting with the idea. However, I’ll get to that soon enough.
I would like to first lay out the idea of the Supreme Court, detailing its purpose, and explaining why it’s a fundamental institution for our constitutional republic.
In regard to our own common law inheritance, by the mid-14th century the judicial branch officially separated from the legislature, as Theodore Plucknett stated in his book, A Concise History of the Common Law, “to such an extent that they treated legislation as the product of an alien body, of which they knew nothing save the words of the statute itself, and from that wording alone they infer its intention—and with the rise of this idea we reach the modern point of view.”
Clearly, there’s a sharp demarcation between the legislature and the judiciary in the common law tradition, and our courts are no exception to this rule.
As Alexander Hamilton stated in Federalist No. 78, “… the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments…”
In the same essay, Hamilton also remarked that “The complete independence of the courts of justice is peculiarly essential in a limited Constitution… one which contains certain specified exceptions to the legislative authority …” Our Union would be entirely unstable if we had elected representatives to make law on our behalf, but no institution to hold them, and the statutes they pass, accountable.
These limitations come from the courts of justice “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void” (Federalist No. 78).
There are already limitations in the body of the Constitution that prohibit certain laws that congress can pass (see Article 1, Section 9, Clause 3), but how is one to expect congress to be held accountable without a separate institution to check it? Are we to be led to believe that congress will check itself?
No wise person would maintain such a folly idea. Faction must check faction (Federalist No. 10) and ambition must counteract ambition (Federalist No. 51).
This is the purpose of the courts: “… to be an intermediate body between the people and the legislature… and to keep the latter within the limits assigned to their authority” (Federalist No. 78).
Hopefully the purpose of the Supreme Court is clear, as I now wish to transition into discussing the outright danger packing the courts presents to a checked and balanced government, or as Hamilton put it a “limited Constitution.”
Not everyone in the sweltering heat of Philadelphia in 1787 agreed with the proposed constitution, and there were even Anti-Federalist Papers published to offer arguments against it.
The Brutus Papers are widely regarded as the foremost exposé against the new constitution, and multiple of them focus on the dangers of the Supreme Court.
For the sake of word count I will not go into them, but check out Brutus Nos. 11, 12, and 15.
The problems presented in the Brutus Papers are real if the Supreme Court is relinquished to the precariousness of politics. Why, ultimately, is this an issue?
Well, it renders the court over as an extension of the legislature, disregarding balanced government.
It is a sentiment shared by Hamilton.
In Federalist No. 78, he argued that “there is no liberty, if the power of judging be not separated by the legislative and executive powers.”
He argued that liberty has nothing to fear from the judiciary alone, “but would have everything to fear from its union with either of the other departments.”
Finally, in Federalist No. 78, he argues that if the courts should be “disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.”
In conclusion, the courts are independent of the legislative and executive branches to serve as a bulwark to encroachments on our liberty from either.
Packing them for political purposes means dissolving balanced government.
Hamilton, in Federalist No. 1, stated that it was remarked that America was set to decide an important question, “whether societies of men are really capable or not of establishing good government…” I think the founders proved that it can be done.
We now face a new question: whether societies of men are really capable or not of perpetuating good government.
Time alone will tell.
As John Jay remarked, in Federalist No. 2, if the dissolution of the Union comes, America will be left proclaiming “Farewell! A long farewell, to all my greatness.”