A Better Answer to an Unpopular Court

Checks & Balances is a newsletter of the Society for the Rule of Law Institute

By Alberto R. Gonzales

Every few years Americans rediscover that the Supreme Court can disappoint them. That is not a flaw in the constitutional design. It is the design. The judiciary was not created to be a dependable instrument of either political party. It was created to decide cases according to law, insulated from the passions of the moment. That independence is often inconvenient. It is also indispensable.

Many Democrats are now angry over recent Supreme Court decisions and are discussing sweeping changes in response. House Minority Leader Hakeem Jeffries has suggested that options should remain on the table, including possible court expansion, term or age limits, and limits on jurisdiction. Americans have every right to disagree with the Court, and political leaders may criticize its reasoning. The Constitution does not require silence in the face of decisions one believes are wrong.

There is, however, a distinction between principled disagreement and institutional retaliation. The former is healthy in a constitutional democracy. The latter is corrosive. When elected officials respond to adverse rulings by threatening to alter the size, structure, or jurisdiction of the Court, they suggest that judicial authority is legitimate only when it produces preferred political outcomes. That message is dangerous, whether it comes from the left or the right.

Republicans have too often succumbed to the same temptation. When courts rule against them, judges are sometimes labeled activists, partisans, or worse. Personal attacks on judges have become an increasingly familiar feature of political conflict. But judges are not legislators in robes, and courts are not campaign organizations. If Americans come to believe that judicial decisions are merely politics by another name, respect for the rule of law will diminish accordingly.

The better response to an unpopular Supreme Court decision is not to attack the Court. It is to govern. If Congress believes a statute has been interpreted too narrowly, Congress can amend it. If an agency policy has been blocked because the executive branch exceeded its authority, the President can work with Congress to secure lawful authority. If constitutional change is necessary, Article V provides a path, difficult by design. These remedies, no doubt, are slower than denunciation. They are also more legitimate and durable.

The Senate also bears responsibility for the judiciary it helps create. Advice and consent is not a ceremonial formality or an act of partisan loyalty to the President. A federal judgeship, especially a seat on the Supreme Court, is a lifetime appointment carrying immense power. Senators should treat confirmation as a solemn obligation to the Constitution, requiring serious inquiry into legal ability, temperament, independence, ethics, candor and respect for the judicial role. If the public is dissatisfied with judicial decisions, a partial constitutional remedy is to elect senators who will exercise greater care before nominees receive lifetime appointments.

Both parties have grown too comfortable asking courts to do work elected officials are unwilling or politically unable to do. When judges deliver the desired result, politicians praise judicial courage; when judges disappoint, they too often accuse them of corruption or partisan motives. This weakens every branch by encouraging legislators to avoid compromise, presidents to stretch executive power, and citizens to view constitutional law as ordinary politics in different clothing.

Good governance requires a different posture. Political leaders and commentators may argue that a decision is wrong, poorly reasoned, inconsistent with precedent, or harmful in its consequences. They should not, however, casually impugn the integrity of individual judges or presume improper motives because they disagree with the result. In the present political environment, personal attacks directed at judges and their decisions can inflame public anger and place judges, their families, and court personnel at risk. No judge is above accountability, and genuine misconduct should be addressed through appropriate channels. But disagreement with a ruling is not evidence of bad faith and must never be a basis for threats or violence.

Nor should the judiciary resist all reform. I would support stronger ethics rules for all federal judges, including Supreme Court justices. Mandatory annual public financial disclosures to Congress, clearer recusal standards, and enforceable conduct rules would strengthen public confidence if applied with care for judicial independence.

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The distinction is between reform aimed at transparency and reform aimed at punishment. Ethics and disclosure rules address conduct. Court-packing, jurisdiction stripping, or structural changes adopted in response to particular rulings look like retribution and invite the public to see the judiciary as another institution to be bent to political power.

Democrats should be especially careful. Many have rightly criticized the current president and his allies for attacking judges, undermining institutions and treating government as an instrument of personal or partisan advantage. But if Democrats regain power and retaliate against the Court because they dislike its decisions, they will surrender the moral ground on which that criticism rests. They will say, in effect, that the problem was not weaponization of institutions, but only who held the weapon.

A party that seeks to govern should not campaign on retribution. It should campaign on repair by focusing on the needs of the American people—protecting rights, strengthening public safety, improving schools, reducing costs, and restoring trust in government. The answer to democratic disappointment is more democracy, not manipulation of independent institutions.

The Supreme Court will make mistakes. So will Congress and the President. The Framers divided power because they understood that each branch would require restraint as well as ambition. Treating every unwelcome decision as a reason to change the Court leads only to escalation and declining public confidence.

The courts should not become campaign instruments. They are not beyond criticism, but neither should they be treated as prizes to capture or punish. If Democrats believe Republicans have damaged public trust by attacking institutions, they should respond with seriousness, restraint, and respect for constitutional limits. Americans are weary of leaders who promise retaliation. They are looking for leaders capable of solving their problems. Governing without revenge is not only the better constitutional answer; it may also be the wiser political one.

Alberto R. Gonzales served as U.S. Attorney General and Counsel to the President in the George W. Bush administration.

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^{The Society for the Rule of Law Institute publishes guest essays to foster thoughtful discussion on issues relating to the Constitution and the Rule of Law. The views expressed in this article are those of the author and do not necessarily reflect the views of the Society for the Rule of Law Institute.}