The Democratic Party increasingly reflects the views of its most radical supporters. In recent primaries, Democrats have voted for candidates who propose to eliminate free-market capitalism, the economic system responsible for creating the world’s strongest economy. These candidates embrace socialism, which economic history teaches is a path to national decline.
The Democratic Party is no less radical when it comes to the Constitution. Democrats are so enraged by recent Supreme Court decisions that they propose changing the basic makeup of the court. One proposed piece of legislation would increase the number of Supreme Court justices from nine to 13. Another proposal would effectively eliminate lifetime service for justices by limiting their active terms on the Supreme Court to 18 years.
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To enact such legislation, Democratic leaders assume that in 2028, when the next presidential election is held, their party will gain majorities in both the House of Representatives and the Senate. They also assume that they will win the White House. Finally, any left-wing legislative proposal to weaken the independence of the Supreme Court would likely depend on eliminating the Senate filibuster, which generally requires 60 votes to advance major legislation. There are a lot of assumptions.
But the most significant impediment to Democratic proposals is that of constitutionality. If Congress intentionally passed a law designed to eliminate the independence of the Supreme Court and make it subordinate to the legislative branch, such a statute would violate a fundamental principle of the Constitution: separation of powers.
Article III of the Constitution does more than establish the federal judiciary. It vests judicial power in the Supreme Court and such inferior courts as Congress may establish. The judiciary is explicitly intended to function independently of the other two branches of the federal government, the legislative and executive. The Constitution specifically protects federal judges through tenure on the basis of their “good behavior.” This effectively provides for lifetime appointments unless a federal judge resigns, retires, dies, or is removed through impeachment and conviction. In addition, the Constitution guarantees that a federal judge’s compensation cannot be reduced while they remain in office. These provisions were designed in significant part to insulate judges from political pressure.
A basic principle of the Constitution is that Congress cannot use legislation to destroy the independence of another branch of government. The Supreme Court cannot simply be made subservient, either formally or in effect, to Congress. The Constitution gives each branch distinct powers and provides procedures through which each can check the others.
If the court merely became a rubber stamp for Congress, its constitutional role would be fundamentally compromised. It would no longer operate as an independent judiciary capable of checking unconstitutional actions by the legislative branch. James Madison, the principal architect of the Constitution, emphasized in Federalist Papers Nos. 47, 48, and 51 that dividing the federal government into distinct legislative, executive, and judicial branches was essential to preventing tyranny and controlling the natural ambitions of public officials.
Madison warned against concentrating legislative, executive, and judicial authority in the same hands. He also explained that the three branches must possess the constitutional means necessary to defend their respective powers against encroachment by the others.
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The constitutional question, therefore, does not turn simply on whether Congress technically possesses authority to alter aspects of the Supreme Court’s structure. Congress has considerable power over the federal judiciary. The fundamental question is whether Congress could use that authority deliberately to destroy judicial independence and subordinate the Supreme Court to its whims.
A law designed to accomplish that objective would face a profound constitutional objection. It would attack the foundational principle of separation of powers and threaten the independent judiciary that the framers considered essential to the American constitutional system.
James Rogan is a former diplomat who later worked in law and finance for over 30 years. Now he writes a daily note on markets, economics, politics, and social issues. He can be reached at [email protected].
