The Supreme Court does not need altering — it has not done anything wrong.
The Supreme Court does not need altering — it has not done anything wrong.
I n the pages of America’s newspapers and magazines, there is a debate raging over how best to “reform” the Supreme Court.
My contribution is as follows: I reject the premise.
At present, the Democratic Party is insistent that we must immediately increase the size of the Supreme Court. Actually, that’s not quite right: They don’t want to do it immediately. In tweets and speeches and op-eds and cable-news appearances, they say “now,” because “now” sounds urgent and serious. But they really mean that they want to do it soon: in two-and-a-bit years, if they win a trifecta in 2028, and in four-and-a-bit or six-and-a-bit years if they don’t. Court reform, it seems, is one of those unusual national emergencies that requires addressing only in a manner that will please readers of the New York Times.
This habit yields some rather amusing rhetoric. Last week, Representative Jamie Raskin explained earnestly in Congress that the Supreme Court must be expanded to 13 justices because “there are 13 federal circuits in America, and traditionally, the Supreme Court has been made up of the number of justices equal to the number of circuits, and we got 13 circuits, but we only have nine justices, so that means that under the best of circumstances, for entire federal regions, four federal circuits will be left out completely.” Which sounds like a problem that ought to be fixed pronto until one recognizes that Raskin’s heartwarming concern for the “four federal circuits” that are “left out completely” is wholly subordinate to his desire to pack the Supreme Court with his friends. If, tomorrow, President Trump were to announce that he, too, is deeply concerned about the four orphaned federal circuits and that, to right this terrible wrong, he intends to add four justices to the existing nine, I daresay that we would not count Representative Raskin among the eager “ayes” in the House.
Later in his diatribe, Raskin was more candid about his motivations. “The Supreme Court,” he lamented, “has been a profoundly conservative, reactionary institution for the vast majority of our history.” Alas, this isn’t quite true. But it damn well ought to be, oughtn’t it? The act of writing down a set of laws is, in and of itself, a conservative act. Constitutions, like the statutes that exist under them, are bodies of law that remain operative until such time as they are formally changed. Courts are merely the institutions that have been charged with enforcing those laws. A “progressive court” is thus a preposterous oxymoron — especially, as in Raskin’s case, when the thing that one hopes to “progress” away from is the integrity of written law itself.
Like so many others in his party, Raskin seemed primarily to be upset about the Dobbs ruling, which overturned Roe v. Wade. Tellingly, in his long and rambling testimony, Roe was the only decision that he mentioned more than once. But whether he understands it or not, this militates against the position that he is advancing, and it’s in favor of the “profound conservatism” that he so enthusiastically maligns. Raskin explained repeatedly that his aim is to create a Supreme Court majority that acts “on the side of the people.” But that is not the Court’s role. The Court’s role is to uphold the law, and Roe v. Wade — which illegitimately removed a political question from the very “people” whom Raskin believes himself to be championing — was never the law in any useful sense of that word. Writing in 1973, the progressive, pro-choice John Hart Ely observed that Roe was “not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” Roe, Hart Ely concluded, presented a problem because it is “bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
That the Supreme Court issued it anyway, and that figures such as Jamie Raskin approve of such behavior, ought not to surprise us. Respect for the law is difficult, especially in a country with a constitution as strong as ours, and not everyone is cut out for the discipline that it requires. From the early days of the republic, we have had politicians who wished that the Constitution said things that it did not, or didn’t say things that it did, or contained passages that were more elastic than they actually were. That, in a democracy, is natural. But it is not virtuous, and when, as is now uniformly the case within the Democratic Party, it results in an enthusiasm for judges who regard the law as a malleable plaything, we have a problem.
Which is why, to put it as nicely as possible, I am not remotely interested in any of the current debates about altering the Supreme Court. The Supreme Court does not need altering, because the Supreme Court has not done anything wrong. Most questions within contemporary American life are the result of differing value judgments, contrary philosophical perspectives, and diverging conclusions about trade-offs. This is not one of them. The approach that produced Roe was wrong. The approach that overturned Roe was correct. One was lawless, the other lawful; one was faithless, the other faithful; one was presumptuous, the other modest. Jamie Raskin and his friends are upset because they do not like what the Constitution actually says and would prefer to substitute it with the imaginary document that exists in their heads. There is no crisis at the Court. There is no problem at the Court. The system that has obtained since 1791 in Article III, and since 1869 in statute, is not only working well; it is working better and more dependably than it has for a long while. The rest is window dressing, and ugly window dressing at that.