The Constitution, in fact, contains tools that enable elected officials to control the courts. Restructuring them is one. This option came up recently; in August, Senator Sheldon Whitehouse, a Democrat from Rhode Island, led several of his colleagues in filing a brief with the Supreme Court regarding the scope of the Second Amendment. It accused the Court of being governed by partisan considerations and concluded with a scarcely veiled threat: Quoting a recent poll about the judiciary, the brief hoped the Court could “heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”
Read: America’s fragile Constitution
This threat may have been overheated—after all, the “neutral justiciability principles” the senators insisted be followed in the case of gun control could not have generated many landmark precedents sacred to the left—but congressional authority to control the court is unquestionable.
It could not have been otherwise, because the Framers feared unchecked authority for any institution of government, a mood the pseudonymous writer Brutus—an opponent of the Constitution—captured in arguing that the document did not sufficiently check judges: “In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will soon feel themselves independent of heaven itself.”
Supporters of the Constitution were eager to dispel this impression of unchecked judicial power. In “Federalist No. 81,” Alexander Hamilton denied that the Supreme Court could get away with sustained abuses of its power, in part because Congress could retaliate by impeaching justices—a second tool available to elected officials seeking greater control over the courts. “This is alone,” he wrote, “a complete security.”
A third option for controlling the judiciary is Congress’s power to place boundaries around the Supreme Court’s jurisdiction. This power of “jurisdiction stripping” results from Article III of the Constitution, which gives the Court appellate jurisdiction in certain categories of cases, “with such exceptions, and under such regulations as the Congress shall make.”
The political authority inherent in wielding these tools, in turn, is subject to the oversight of the people, who have proved reluctant to support its frequent use. Even in the throes of the Great Depression, Americans rejected Franklin D. Roosevelt’s plan to save the New Deal by adding several justices to the Supreme Court.
There is no comparable crisis that would justify congressional interference with the Supreme Court today. (Some assert that Donald Trump’s presidency presents such a crisis, but that is a crisis for voters, not judges, to consider.) The problem is not that these tools are unused, but rather that their deployment has become unthinkable. Justices know they will never be impeached for the content of their rulings, a power Congress has shunned since the abortive impeachment of Justice Samuel Chase in the early 19th century. Similarly, Congress should not restructure the Supreme Court because it disagrees with a single decision or even with a single generation of justices. But the idea that Congress could never legitimately do so encourages judicial arrogance.