Since the founding of our nation, the Supreme Court has worked independently. As members of a co-equal yet separate branch of government, justices have generally been able to stay out of the push-and-pull of politics and impartially settle disputes. But this month, after mounting pressure from outside groups, Democrats on the Senate Judiciary Committee threatened that judicial autonomy. In a party-line vote, they advanced a proposal to impose new rules on the Supreme Court. If the bill becomes law, it would undermine the judiciary’s independence and chip away at its credibility at just the wrong time. Public trust in the high court is at a fifty-year low. Political interference would only make it worse.
Democrats Threaten SCOTUS Independence
Congress has passed disclosure and recusal laws for the Court before, but elements of the Democrats’ new legislation would violate the founders’ vision for the Court. For example, one provision would establish a system in which any citizen could submit complaints against a justice. This is a misunderstanding of the judicial branch and its role. The Constitution says justices “shall hold their offices during good behavior.” In other words, they serve for life and do not need to win public support. If they do violate the public trust, the legislative branch can impeach and remove them. This has always insulated justices from the whims of politics while holding them accountable to high ethical standards.
The most dangerous aspect of the bill concerns recusals. It would allow legal parties to request that a justice be removed from a case because of a conflict of interest. That request would then be decided by a randomly-selected panel of judges or the rest of the Court, and the groups would publish a rationale of their ruling. This would invite abuse. Recusals should be rare. The new program would allow those with business before the Court to game the system by picking off jurists they do not want voting. This would certainly diminish trust in the Court.
Biden Calls Court Abnormal
The public does damage to the Court’s reputation when citizens respect only decisions with which they agree. Last month, President Biden cheered when the justices voted 7-2 to validate the Indian Child Welfare Act. But two weeks later, when the Court ended affirmative action, the president cast the body as illegitimate. “This is not a normal court,” the president said. However, beneath the panicked headlines, the full record reveals the justices are guided by their best attempts to apply the law.
It is true that most of the Roberts Court was appointed by Republicans, but that does not make its rulings predictable. This term, nearly half of the Court’s opinions were unanimous. The six Republican-appointed justices – regrettably, in my view – did not always vote as a bloc. For example, Justice Kavanaugh voted with Justice Kagan more frequently than he did with Justice Thomas. For another: Close readers will find Justice Barret trading barbs with both Justices Kagan and Gorsuch in her opinions. These unforeseeable results are the way the Court was meant to function. Its decisions are the result of spirited debate among bright legal minds.
Our founders knew the Court needed independence to check the powers of Congress and the president. Freedom from political pressure allows our justices to focus on their core task: interpreting the law. Republicans will continue to protect the checks-and-balance system the framers began by resisting efforts to interfere at the Supreme Court.