There's nothing new in government officials complaining about judges standing in the way of schemes intended to impose some vision of the good life on the country but found to run afoul of the Constitution and the law. And with Supreme Court popularity low among Democrats, it's an opportune time for President Joe Biden to not only criticize justices but propose a plan for "reforming" the court in ways that might also give his allies greater control over the body. It's undoubtedly a political move—and one that invites a warning from Associate Justice Neil Gorsuch.
'Be Careful'
Asked this week by Fox News's Shannon Bream to respond to the Biden administration's proposed restrictions on the Supreme Court, as well as a constitutional amendment addressing one of its decisions, Gorsuch first cautioned that he didn't think it would be helpful "to get into what is now a political issue." But then he added:
"The independent judiciary means… What does it mean to you as an American? It means that when you're unpopular, you can get a fair hearing under the law and under the Constitution. If you're in the majority, you don't need judges and juries to hear you and protect your rights. You're popular. It's there for the moments when the spotlight is on you, when the government is coming after you. And don't you want a ferociously independent judge and a jury of your peers to make those decisions? Isn't that your right as an American? And so, I just say, be careful."
By itself, Gorsuch's response seems rather strong to a three-part proposal for a constitutional amendment rolling back the court's grant of wide-ranging immunity to presidents for official acts, term limits for justices, and a congressionally imposed code of conduct for members of the court. But Biden's proposal comes wedded to complaints that the court isn't producing his preferred outcomes, and amidst a continuous effort to delegitimize the country's highest judicial body.
Extreme Opinions and Shadow Special Interests
"In recent years, extreme opinions that the Supreme Court has handed down have undermined long-established civil rights principles and protections," Biden complained in Austin, Texas, after his administration's proposals were unveiled. He huffed about "scandals involving the justices" and then he alluded to "a decades-long effort to reshape the judiciary…backed by shadow special interests."
In themselves, the proposals are worthy of discussion. In particular, undoing the presidential immunity decision has merit, since it "raises questions about whether a former president can be held criminally liable for outrageous abuses that arguably qualify as official acts," in the words of Reason's Jacob Sullum.
But linked, as the proposals are, to implications that the court's decisions are the result of a corrupt cabal linked to a shadowy conspiracy, it's fair to suspect that a larger effort to hobble the Supreme Court is underway. That brings us to Gorsuch's brief paean to the value of an independent judiciary and his warning to "be careful" lest we lose that important quality.
Perhaps Not So Shadowy or Conspiratorial
"Extreme" opinions, it should be remembered, are in the eye of the beholder. While many of us would dispute decisions rendered by the high court, that doesn't mean that anything nefarious is at work, or that one faction is consistently riding roughshod over opposition.
"This term, the Court ruled unanimously in almost half (46 percent) of cases, which was similar to the year before (48 percent) and a significant uptick from the term before that (29 percent)," the Pacific Legal Foundation's Anastasia Boden noted last month for Reason. Achieving or approaching unanimity "were hot-button cases involving former President Donald Trump's eligibility for the presidency, access to the abortion drug mifepristone, the government's ability to dissuade companies from doing business with the National Rifle Association, regulation of social media companies, and the scope of the Second Amendment."
In particular, collaborations between Justices Neil Gorsuch (Trump-appointed) and Ketanji Brown Jackson (Biden-appointed) on criminal justice matters and challenges to government power "should cheer civil libertarians across the political spectrum," Mark Joseph Stern commented last year in Slate.
But Democrats, and especially progressives, are undoubtedly unhappy about the court's decisions on presidential immunity (at least when it comes to Trump), guns, student loans, the administrative state and, especially, abortion. That dissatisfaction "caused public opinion to question the court's fairness and independence," according to Joe Biden.
OK. But the questioning is highly one-sided.
Partisan Gamesmanship
"Partisans' ratings of the high court, which have been politically polarized in most years since 2000, continue to diverge, with 66% of Republicans, 15% of Democrats and 44% of independents approving," Gallup reported last month.
Given that public trust in government is in the toilet, and that the only institutions in which a majority of Americans have confidence are small business, police (barely), and the military, the Supreme Court is hardly alone in losing the faith of a large segment of the population.
Partisan disagreement over the court is also unsurprising. In this deeply divided nation, people support institutions controlled by their faction and despise those in "enemy" hands. Insincere "reforms" intended to bring the court under the control of other branches of government, especially coming so soon after thankfully short-circuited talk of packing the court with expanded ranks of progressive-leaning appointees, may rejigger which political tribe approves of the court and which doesn't. But they won't improve overall trust.
In truth, Speaker of the House Mike Johnson (R–La.) says the Biden administration's proposals are "dead on arrival" in Congress. That makes the plan just an attempt to delegitimize the court and rally the base. For a better solution to the country's woes, Gorsuch has another idea.
Fewer Laws Means Less To Fight Over
"When we turn to law to solve every problem and answer humanity's age-old debates about how we should live, raise our children, and pray, we invite a Leviathan into our lives," he and co-author Jane Nitze warn in an essay adapted by The Atlantic from their book Over Ruled: The Human Toll of Too Much Law.
They propose a nation of fewer laws and less government. That would give us less to fight about, including high-stakes court decisions and the justices who make them.
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