August 14, 2020 Reading Time: 7 minutes
kamala harris

The Supreme Court has come under the microscope of politicization as Democrats are clearly upset about President Trump’s judicial nominees. With Senator Kamala Harris now the Vice Presidential nominee for the Democratic Party, it is worth noting her stances on the issue. According to The Hill, Senator Harris remarked during her presidential campaign that 

“I’m open to this conversation about increasing the number of people on the United States Supreme Court,” the 2020 presidential candidate said, according to Bloomberg.

Harris also expressed openness to limiting how many justices one president can nominate and applying term limits to justices, according to the news outlet.”

This idea is popular not just with Senator Harris but also amongst many of her Progressive contemporaries such as Senator Elizabeth Warren, Senator Cory Booker, and Mayor Pete Buttigieg who have all expressed interest in packing the court. Those like Senator Bernie Sanders say that they are open to imposing term limits, which also flies in the face of judicial independence.

Why Does This Matter?

This rhetoric should trouble you because it not only goes against the proven ideals of our government but goes straight for the independence of the judicial system. Unlike the other two branches of government, the Supreme Court is not supposed to be democratic or be accountable to any sort of body, with the exception of poor behavior. 

Judges were intentionally given lifetime appointments, strong wages, and overall independence from the Executive or Legislative branches precisely so they do not need to worry about appeasing certain political interests. They can uphold the Constitution in a manner that they feel is right, based on their decades of judicial experience, and can rule against the administration or any sort of political force at will. Such an arrangement is critical to preserving individual liberty and the very survival of the republic.

Lessons from History

What Senator Harris and other proponents of judicial reform don’t seem to understand is that the most celebrated and essential component of the American legal system is the independent judiciary as it is the bulwark that not only protects the Constitution and individual liberty, but the stability of our democracy. Tyrants from the left or right would love if anything to exercise influence over the courts. Judicial independence is a concern that The Founders took seriously, as illustrated by Alexander Hamilton’s writings in the Federalist Papers. In Federalist 78 he states that an independent judiciary will

 “Secure, a steady, upright, and impartial administration of the laws”. 

This understanding by The Founders is the bedrock of this principle and was developed in direct response to their treatment by the English government. 

As a result, America forged a new path towards limited government and republican democracy rather than returning to the despotic conditions it escaped. The Founders’ understanding of judicial independence was that of an impartial and independent court system which they meticulously enshrined in the Constitution. That entails a court system that is loyal to the Constitution of the United States, not any particular personality, political or financial interest, or other branches of government. In order to create such a rugged and impregnable judiciary, the Founders ensured the Constitution provided the structural framework for this project that protects our liberty through a robust separation of powers. 

Hamilton stresses this separation of powers when he writes that the judiciary department will exercise 

“Merely judgment and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” 

Even though the executive branch may possess the police department, the authorization of force and the judgment of cases belong to the judicial branch. Lifetime tenure and secure salaries are another series of bulwarks that protect the independent judiciary. In Federalist 78 Hamilton references that the tenure of judges during good behavior is 

“An excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.” 

The secure position of judges ensure they can make independent judgments and ensure that lawmaking bodies are kept in check. Hamilton was so incredibly adamant about this lifetime tenure system that he writes

The inflexible and uniform adherence to the rights of the Constitution, and of individuals which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.” By removing the concerns that come with reelection, judges can make their own decisions independent from the desires of either special interest groups or the masses. 

Wisdom From Contemporary Judges

The Founders knew that judicial independence was an essential component of the democratic republic they created. This was a radical experiment in liberty and self-government which Supreme Court Justice Breyer describes by remarking: 

“Our Constitution establishes a democracy, but it does not establish a pure democracy. Rather it establishes a democracy of a certain kind. It divides power, vertically between States and the federal government and horizontally among three federal branches.” 

This is understandable as they just finished up fighting a revolution against a government they felt was despotic and tyrannical

The Founders enshrined this grief in the Declaration of Independence when they wrote

“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.” 

The Founders were keen on preventing a repeat of this sort of unchecked and abusive government. Alongside preventing elite domination, Former Supreme Court Justice O’Connor points out that also 

In short populist, substance-based accountability for judges is precisely what the Founders feared.”

By safeguarding the judiciary from the special interest of individuals or groups, no matter how large, the rights of the minority are protected from the tyranny of the majority.

The independent judiciary made it possible to honor the phrase “all men are created equal” by minimizing bias and corruption in the court system. Justice Breyer points out that this equality before the law is what allowed America to prosper because it gave citizens the confidence and the ability to navigate financial matters such as contracts. 

Without an absolute trust in the fairness of the courts, citizens could not expect the government to enforce the law. Breyer remarks clearly on this matter by stating 

“The absence of independence – amounts to no kind of justice at all.” 

The Founders knew that in order to create a legitimate system of laws without the justification of royal blood or divine right, fairness must reign supreme. Hamilton said

“If the laws are not suffered to control the passions of individuals, through the organs of an extended, firm and independent judiciary, the bayonet must.” 

This firm commentary on the importance of judicial independence lays out the bleak alternative that is a society without the rule of law.

Senator Harris is Adding Fuel to a Fire 

Survey data from the Pew Research Center suggest that Americans are not only at a 15-year low in terms of favorability of the Supreme Court but also split on partisan lines. The Supreme Court is not Congress, so it doesn’t matter if it leans one way or the other nor is it a super legislator. Instead of attempting to fan the flames of populist discontent, leaders like Senator Harris should recognize the danger of altering the court for political motives. If not to preserve the Constitution at least to protect the Progressive agenda from the next time Republicans are in power. History shows the real motives of those who wish to pack the court, isn’t as many would say, to “fix the Supreme Court.” Rather we only need to look at President Franklin Roosevelt to see what politicians really mean. According to the Federal Judicial Center,

“Roosevelt’s motive was clear – to shape the ideological balance of the Court so that it would cease striking down his New Deal legislation.” 

If we look at Senator Harris’s ideas from her presidential campaign, such as her proposal to take executive action if Congress doesn’t pass gun control within 100 days, we see that she is very much in the mold of FDR. Reason Magazine recounts on her response to a debate question pertaining to the constitutionality of her proposal when they write

“The former prosecutor not only conspicuously failed to do so but literally laughed at the question.”

This says enough about her views regarding the constitution and individual rights more generally.

Judicial Independence is Non-Partisan 

Of course, the recent push by American Progressives for problematic judicial reforms isn’t without provocation. According to the Center for American Progress, Senate Republicans used a series of nomination blocking tactics dubbed the “nuclear option” to ensure that former President Obama could nominate the fewest judges possible. After Trump’s election they proceeded to do the reverse, employing maneuvers to shorten the confirmation process resulting in a surge of conservative judges. Not only has this brought the attention of the mainstream media sending sensational, partisan headlines to the public, it invited Democratic backlash. This echoes Justice O’Connor’s warning that 

“Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.” 

The legislative and executive branch working in tandem to alter judicial confirmation processes and introduce a considerable number of at best conservative and at worse subservient judges seems like a step in that direction. It is clear that the conservatives began a recent attempt to stack the judiciary that inevitably provoked a progressive retaliation. However, if progressives refuse to be the mature minds in this manner it could be an exchange that will ruin the public’s trust in the court system and undermine the rule of law. From there the country is on the path to ruin.

Our Republic is at Stake 

The Founders, such as Alexander Hamilton, were incredibly concerned with maintaining an independent judiciary that reports to no one but itself. Justice Breyer and O’Connor, Clinton- and Reagan-appointed judges respectively, are both convinced that idea is under attack. It is clear that judicial independence is being eroded and public trust is faltering. This will only be worsened by those like Senator Harris who wish to turn it into another extension of the legislative and executive branch, where toxic partisan back and forth plagues everyday activity. Unlike the Article I or II branches, it isn’t filled with crooked, smooth-talking, power-hungry opportunists. It houses some of the most principled, intelligent, and dedicated public servants this country has to offer. 

Sentiments espoused by Progressive politicians like Senator Harris calling for term limits, and expanding the number of seats, mirrors an overall disdain for the Constitution and a lust for power much like the progressives of the 20th century. Senator Harris’s running mate, Democratic Presidential Nominee Joe Biden seems to understand this idea better than Harris and her contemporaries as he remarked

“No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”

Senator Harris and her Progressive allies would do best for the country to attempt to restore respect and understanding of the Supreme Court, not undermine it by turning it into another political game. What’s at stake is a carefully crafted legal system that stands between a free society and tyranny from the few as well as the majority.

Ethan Yang

Ethan Yang

Ethan Yang is an Adjunct Research Fellow at AIER as well as the host of the AIER Authors Corner Podcast.

He holds a BA in Political Science with a concentration in International Relations with minors in legal studies and formal organizations from Trinity College in Hartford Connecticut. He is currently pursuing a JD from the Antonin Scalia Law School at George Mason University.

Ethan also serves as the director of the Mark Twain Center for the Study of Human Freedom at Trinity College and is also involved with Students for Liberty. He has also held research positions at the Cato Institute, the Connecticut State Senate, Cause of Action Institute and other organizations.

Ethan is currently based in Washington D.C and is a recipient of the 13th Annual International Vernon Smith Prize from the European Center of Austrian Economics Foundation. His work has been featured and cited in a variety of outlets from online media to radio broadcast.

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