There is something profoundly disturbing happening in the American conversation about the Supreme Court, and it reaches far beyond whether someone likes the current nine justices, hates them, wants four more, wants eighteen-year terms, or wants the Court left exactly as it is.

We are increasingly talking about the three branches of the federal government as though an election is an acquisition.

Win the White House, and the president supposedly owns executive authority plus whatever else he can bully into submission. Win Congress, and legislators supposedly acquire the right to bend the judiciary to their political will. Secure a Supreme Court majority, and suddenly nine unelected judges are imagined by some supporters as possessing the final political word on nearly everything, practically immune from criticism, congressional regulation, or constitutional checks.

That is not separation of powers.

That is political possession.

James Rogan recently argued that Democrats might eventually possess enough votes to “subjugate the Supreme Court” but would lack constitutional authority to do it. His central concern deserves serious attention: an independent judiciary cannot remain independent if Congress can simply punish judges, remove them, dictate their judgments, or turn the Supreme Court into an obedient extension of the legislative majority.

On that principle, Rogan is right.

His constitutional argument begins breaking apart when he equates proposals to change the size of the Supreme Court with unconstitutional subjugation of the judiciary. The Constitution establishes “one supreme Court,” protects Article III judges through tenure during “good Behaviour,” and protects their compensation from being diminished during their service. It does not establish nine seats. Congress has determined the Court’s size throughout American history, beginning with six justices under the Judiciary Act of 1789. (Constitution.gov)

That distinction cannot be brushed aside simply by shouting “separation of powers.”

There is a much larger constitutional problem staring us in the face. Americans across the political spectrum increasingly appear willing to defend the independence of a branch when that branch produces outcomes they prefer, then discover astonishingly broad theories of political control when it does not.

I refuse to play that game.

I do not want a Supreme Court owned by Democrats.

I do not want a Supreme Court owned by Republicans.

I certainly do not want a Supreme Court that behaves as though it owns the United States.

And I want no president—Republican, Democratic, independent, or whatever might come next—operating under the delusion that Article II secretly contains an invisible sentence reading, “Everybody else works for me.”

The Constitution created three branches.

Not a king and two advisory committees.

Not Congress and its judicial department.

Not nine justices and several hundred elected assistants.

Three branches.

The distinction is fundamental.

Article III Does Not Say Nine

If we are going to fight over the Constitution, perhaps we should begin with the radical act of actually reading it.

Article III begins:

“The judicial Power of the United States, shall be vested in one supreme Court…”

That is what the Constitution requires.

One Supreme Court.

Now find the word nine.

It is not there.

Find the constitutional requirement for eight associate justices.

It is not there either.

Find the constitutional amendment establishing the nine-member Supreme Court.

You will be looking for a very long time.

Congress’s own Constitution Annotated states that the Constitution is silent regarding the Supreme Court’s size and composition and leaves those questions to Congress. Congress structured the original Court through the Judiciary Act of 1789, creating a chief justice and five associate justices. The first Supreme Court had six members, not nine. (Constitution.gov)

Then something supposedly constitutionally terrifying happened.

Congress changed the number.

And then changed it again.

And again.

The authorized number moved from six in 1789 to five under legislation passed in 1801, back to six in 1802, seven in 1807, nine in 1837, ten in 1863, seven under the 1866 legislation, and finally nine under the Judiciary Act of 1869. The 1866 reduction was accomplished through attrition rather than immediately ejecting sitting justices; the Court reached eight before Congress reversed course in 1869 and established nine seats. (Federal Judicial Center)

Nine has remained the statutory number since then.

That makes nine traditional.

It makes nine familiar.

It might make nine desirable.

It does not make nine constitutionally ordained.

This history presents an inconvenient problem for anyone claiming that congressional alteration of the Court’s size is inherently an assault upon separation of powers. Congress has been determining the number of Supreme Court seats since the government created under the Constitution began operating.

Congressional Research Service analysis is remarkably direct on this point. Article III contains important limitations protecting judges, yet outside those requirements, Congress possesses extensive authority concerning the federal judiciary’s structure. CRS has concluded that nothing in the constitutional text expressly prevents Congress from expanding the Supreme Court in an attempt to influence its ideological direction. (Congress.gov)

Read that carefully.

It does not say court expansion is good policy.

It does not say thirteen justices would improve the country.

It does not say Democrats should do it.

It says the constitutional argument is far more complicated than declaring that changing the Court’s size equals unconstitutional subjugation.

Those are different questions.

We desperately need to relearn how to hold two thoughts simultaneously.

Something can be constitutional and terrible.

Something can be constitutional and reckless.

Something can be constitutional and politically self-destructive.

Something can be constitutional and set a precedent that Americans later bitterly regret.

The Constitution establishes the outer boundaries of government authority. It does not relieve elected officials of judgment.

Judicial Independence Is Real—and It Belongs to Nobody

Here is where critics of congressional attacks on the judiciary have an extremely strong case.

Article III judges hold office during “good Behaviour.” Their compensation cannot be diminished during their continuance in office. These provisions were meant to protect judges from political retaliation. Constitution Annotated describes the federal judiciary as an independent branch and explains that life tenure and compensation protections prevent political branches from retaliating against judges for unpopular decisions by removing them or cutting their pay. (Constitution.gov)

That independence deserves fierce defense.

Suppose Congress passed legislation saying Supreme Court justices automatically lose their seats whenever they invalidate three congressional statutes.

That would raise an enormous constitutional problem.

Suppose Congress ordered the Court to reopen a final judgment and enter the opposite result merely because legislators disliked what the Court decided.

Again, enormous constitutional problems.

Suppose a president announced that federal judges who ruled against the administration would lose their positions.

Absolutely not.

Suppose Congress reduced a particular justice’s salary after an unpopular decision.

Article III expressly prohibits diminishing judicial compensation during service.

Judicial independence means something.

But independence does not mean immunity from every constitutional check.

Congressional authority affecting the judiciary does not automatically constitute domination of the judiciary. Constitution Annotated makes that distinction itself: the Framers sought to protect courts from undue political influence, yet the constitutional system does not create complete separation between the judiciary and the political branches. Congress retains substantial authority over the federal courts, subject to constitutional limits. (Constitution.gov)

That is the constitutional structure people keep flattening into slogans.

Independence is not supremacy.

Regulation is not necessarily subjugation.

Checking another branch is not the same thing as owning it.

Eighteen-Year Terms Are a Different Constitutional Animal

The proposed eighteen-year Supreme Court term limit deserves separate treatment from court expansion, which is another place where broad political arguments frequently become legally sloppy.

The Constitution does expressly address judicial tenure.

Article III says judges “shall hold their Offices during good Behaviour.” Modern constitutional doctrine has treated that language as providing the practical equivalent of life tenure, with removal occurring through impeachment. Constitution Annotated cites Supreme Court decisions describing Article III judges as appointed for life subject to impeachment and describing the Good Behavior Clause as guaranteeing life tenure. (Constitution.gov)

That creates a real constitutional obstacle to simply passing a statute saying, “Congratulations, Justice. Your eighteen years are finished. Pack your chambers.”

Some reform proposals attempt to avoid that problem by allowing a justice to leave active Supreme Court service after eighteen years but retain Article III judicial status elsewhere. Whether such a system can be accomplished through ordinary legislation rather than constitutional amendment remains disputed.

That dispute should be treated as a dispute.

There is a maddening habit in American politics of turning unsettled constitutional questions into absolute declarations whenever certainty is politically useful.

We can do better.

A genuine eighteen-year removal from Article III judicial office is difficult to reconcile with the Good Behavior Clause. A carefully structured senior-status system raises different questions. A constitutional amendment establishing fixed Supreme Court terms would remove much of the Article III dispute.

Those distinctions might sound less exciting than declaring the republic moments from destruction.

They have one advantage.

They are intellectually serious.

Separation of Powers Was Supposed to Be Irritating

Americans sometimes discuss checks and balances as though the Framers created an elegant governmental flowchart in which everybody politely remains inside a little box.

They created conflict.

The branches were given overlapping mechanisms that force them into recurring institutional confrontation.

The president nominates federal judges.

The Senate decides whether to confirm them.

Congress passes legislation.

The president can veto it.

Congress can override that veto with the constitutionally required supermajority.

The executive administers federal law.

Courts adjudicate cases involving that law.

Congress establishes lower federal courts.

Courts can determine that congressional legislation violates the Constitution.

The House possesses the sole authority to impeach.

The Senate conducts impeachment trials.

When a president is tried, the Chief Justice presides.

Congress controls appropriations.

The president commands the armed forces, subject to a constitutional structure that assigns major war-related authority to Congress.

Nobody gets everything.

That was the point.

James Madison’s famous discussion of separation of powers in Federalist No. 51 did not proceed from the assumption that political officials would consistently behave with restraint and humility. The constitutional design was built around a far less sentimental assessment of human ambition: institutions needed constitutional means to resist encroachment from other institutions.

That structure is supposed to frustrate presidents.

It is supposed to frustrate senators.

It is supposed to frustrate representatives.

It is sometimes supposed to frustrate Supreme Court justices.

And it is absolutely supposed to frustrate us.

The Constitution was not written to guarantee that our preferred political program could be enacted immediately whenever our preferred candidates won an election.

That is one of the most dangerous misconceptions infecting American politics.

Winning an election gives officials an office.

It does not give them the country.

The Supreme Court Does Not Work for Congress

Let us state the proposition as forcefully as it deserves.

Congress does not employ the Supreme Court.

A congressional majority cannot command justices to interpret the Constitution according to its preferred ideology. It cannot constitutionally remove judges merely for producing decisions legislators dislike. It cannot reduce their salaries as punishment. It cannot transform Article III courts into legislative departments charged with ratifying whatever Congress sends them.

The Framers gave federal judges institutional protections for precisely this reason.

The Constitution Annotated recounts James Wilson’s concern at the Constitutional Convention that judges would be placed in a terrible position if their status depended upon every political faction that temporarily gained control of government. (Constitution.gov)

That concern remains remarkably current.

Judges must sometimes tell Congress no.

Judges must sometimes tell presidents no.

A constitutional judiciary that becomes afraid to rule against the political branches ceases to perform one of the functions for which judicial independence exists.

If Democrats gained control of Congress and the presidency and attempted to restructure the Supreme Court expressly to guarantee favorable decisions, Americans would be justified in asking extremely hard questions about institutional legitimacy, retaliation, precedent, and what happens the next time Republicans acquire unified control.

Those are legitimate concerns.

They deserve more than partisan dismissal.

But critics owe Americans equal intellectual honesty.

If Congress has constitutional authority to establish the number of Supreme Court seats, calling the exercise of that authority automatically unconstitutional does not make it so.

One can oppose court expansion without rewriting Article III.

I may think giving a teenager the legal right to spend every cent in a savings account on 14,000 pieces of bubble gum is spectacularly stupid. My opinion about the wisdom of the purchase does not magically eliminate the legal authority to make it.

Constitutionality and wisdom are separate inquiries.

American political discourse desperately needs that distinction restored.

Congress Does Not Work for the Supreme Court Either

Now we arrive at the part defenders of judicial independence sometimes become much less enthusiastic about discussing.

The Supreme Court is independent.

It is not sovereign.

Nine justices do not become the owners of American democracy when they put on black robes.

Congress remains an independent constitutional branch possessing powers granted directly by the Constitution. The president remains the head of a separate branch possessing different constitutional authority. States retain their own constitutional role within the federal system.

Judicial review is enormously consequential, and Marbury v. Madison became foundational to American constitutional government. Courts must be able to determine what law governs cases properly before them.

But judicial review cannot sensibly be transformed into a theory that says the Supreme Court possesses unlimited authority over the other branches simply by labeling something constitutional interpretation.

A constitutional republic requires judicial independence.

It requires legislative independence too.

And executive independence within the limits of Article II.

The branches constrain each other precisely so none can claim permanent institutional supremacy.

That means Americans should be willing to scrutinize aggressive judicial authority with the same seriousness applied to congressional or presidential overreach.

A justice is not constitutionally infallible.

A Supreme Court majority can be wrong.

History has demonstrated that fact with painful clarity.

The Court decided Dred Scott v. Sandford.

The Court decided Plessy v. Ferguson.

The Court upheld the forced exclusion of Japanese Americans in Korematsu v. United States.

The constitutional system survived those decisions partly through political action, later judicial correction, legislation where available, constitutional amendment where necessary, and generations of Americans refusing to accept that five or more justices had rendered injustice intellectually untouchable.

Respect for the judiciary cannot require historical amnesia.

And the President Is Not the Boss of Either One

This is where the conversation becomes especially urgent.

The presidency is powerful.

It is not a monarchy with elections.

Article II does not place the president above Congress.

It does not place the president above federal courts.

It does not make judges presidential employees after appointment.

Once confirmed and commissioned, Article III judges do not owe political loyalty to the president who selected them.

That principle should be almost painfully obvious.

Yet listen to modern political rhetoric surrounding judicial appointments. Presidents and supporters increasingly talk about judges as political victories belonging to the administration that appointed them. Commentators count “Trump judges,” “Biden judges,” “Obama judges,” or “Bush judges” almost like legislators in ideological caucuses.

The shorthand is understandable.

The mentality behind it can become poisonous.

A president does not purchase future judicial decisions by nominating someone.

A senator does not acquire a justice’s vote by confirming that nominee.

A political movement does not receive a constitutional dividend payable in favorable Supreme Court rulings.

If judges begin believing they owe outcomes to the political coalitions responsible for their appointments, Article III independence has already been damaged without Congress changing a single statute.

The same principle applies when presidents attack courts for refusing executive demands. Courts do not exist to validate presidential preferences. An administration losing a case is not evidence that a judge has committed political treason.

Sometimes the president is wrong.

Sometimes Congress is wrong.

Sometimes the Supreme Court is wrong.

The Constitution assumes human beings will occupy all three branches.

That should tell us something.

Court Packing Can Be Constitutional and Still Be Dangerous

Now let us confront the political question without hiding behind constitutional vocabulary.

Would expanding the Supreme Court to thirteen seats be dangerous?

It could be.

If Democrats gained unified control and added four seats for the transparent purpose of creating an ideological majority, Republicans would have every political incentive to respond when they regained control.

Thirteen could become fifteen.

Fifteen could become nineteen.

Nineteen could become twenty-three.

At some point, the Supreme Court could become functionally indistinguishable from another political body whose composition changes whenever election results permit the governing coalition to add enough members to obtain the desired outcome.

That would be catastrophic for public confidence.

But notice what makes that argument strong.

It does not require pretending the Constitution says nine.

The problem is institutional escalation.

Franklin Roosevelt’s famous 1937 court expansion proposal remains the obvious warning. Roosevelt faced a Supreme Court that had invalidated significant New Deal legislation. His plan would have permitted additional appointments under specified circumstances involving older justices. The proposal encountered ferocious political resistance and failed.

Its failure became part of the political tradition surrounding the nine-member Court.

Tradition counts.

Institutional norms count.

Political restraint counts.

They count precisely since no written constitution can anticipate every destructive thing political actors might technically possess authority to attempt.

That is where the present debate should occur.

Do we want to begin a cycle in which every governing majority regards the Supreme Court’s membership as another legislative variable?

If Democrats add four seats, what principled argument prevents Republicans from adding six?

If Republicans then add six, what stops Democrats from adding eight?

The answer cannot simply be, “Our expansion was justified.”

Every faction believes its retaliation is justified.

That is how escalation works.

Term Limits Deserve Better Than a Partisan Food Fight

There is another reason the eighteen-year proposal deserves a more serious discussion.

Lifetime tenure has produced circumstances the eighteenth-century constitutional system could never have experienced in precisely the same form.

Modern medicine permits longer lives. Supreme Court vacancies can become politically strategic events. Presidents may select comparatively young nominees partly because those nominees could influence constitutional law for thirty or forty years.

One death or retirement can alter constitutional doctrine for a generation.

That raises legitimate democratic questions.

An eighteen-year system, often proposed with staggered appointments, attempts to make Supreme Court vacancies more predictable and reduce the extraordinary political lottery surrounding deaths and retirements.

There are arguments for that model.

There are arguments against it.

There are constitutional questions about implementing it legislatively.

So take the cleanest route if Americans decide fixed terms are desirable.

Amend the Constitution.

We have an amendment process.

It is intentionally difficult.

Difficulty is not a constitutional defect.

When Americans want to alter something the Constitution protects, Article V supplies a mechanism for doing it. Circumventing constitutional requirements simply because amendment is politically difficult would teach future political actors an extremely dangerous lesson: constitutional barriers apply only until clever lawyers discover a workaround.

If fixed Supreme Court terms are worth having, proponents should be prepared to persuade the country.

Stop Defending Principles Only When Your Side Needs Them

Here is the test I wish every American would apply.

Would you still support this constitutional theory if the opposing party controlled the institution exercising it?

If Democrats may expand the Supreme Court from nine to thirteen, would you defend Congress’s constitutional authority to change its size if Republicans controlled Congress and the presidency?

If you support broad presidential authority under Donald Trump, would you enthusiastically place identical authority in the hands of Alexandria Ocasio-Cortez, Gavin Newsom, or another future Democratic president?

If you support aggressive judicial review when a conservative Supreme Court invalidates progressive legislation, would you support the same judicial authority if a liberal Court invalidated major conservative legislation?

If your constitutional interpretation changes when the names change, we are no longer discussing constitutional interpretation.

We are discussing team loyalty wearing a powdered wig.

That disease exists across American politics.

Liberals are capable of it.

Conservatives are capable of it.

Presidents are capable of it.

Members of Congress are capable of it.

Judges are capable of it.

Voters are certainly capable of it.

A constitutional principle proves itself when you are willing to live under it after your opponents take office.

Anything less is merely a temporary political preference.

The Most Dangerous Court Is an Obedient Court

There is a chilling possibility buried beneath all this argument about seats and terms.

What if Americans actually succeeded in creating the Supreme Court their political tribe dreams about?

A Court guaranteed to agree with them.

A Court whose members understood what decisions were expected.

A Court whose composition could be altered whenever it stopped producing those decisions.

A Court afraid of congressional retaliation.

A Court deferential to presidential demands.

A Court selected, threatened, expanded, contracted, financially pressured, or otherwise manipulated until judicial independence became ceremonial.

Some people would celebrate.

For a while.

Then their opponents would win an election.

Suddenly the machinery they constructed would belong to somebody else.

That is the recurring tragedy of authoritarian temptation. People picture extraordinary governmental authority in the hands of leaders they trust. They rarely spend enough time picturing the identical authority exercised by people they fear.

The constitutional system asks us to perform that second exercise constantly.

What can the president do when their president occupies the White House?

What can Congress do when their party has the votes?

What can judges do when their judicial philosophy controls the Court?

Those questions are uncomfortable.

They are supposed to be.

The Constitution Is Not a Winner-Take-All Contract

Elections matter enormously.

They determine who exercises staggering governmental authority.

They determine presidents, senators, representatives, appointments, legislation, budgets, enforcement priorities, foreign policy, and much more.

But an election is not a constitutional foreclosure sale.

The winning party does not receive the deed to the federal government.

The losing party does not lose its constitutional rights.

Judges do not become employees of the electoral majority.

Congress does not become an advisory board to the president.

The president does not become the nation’s temporary sovereign.

And Supreme Court justices do not become philosopher-kings entitled to substitute their preferences for every decision entrusted elsewhere by the Constitution.

The American constitutional system is frustrating precisely since authority is divided.

It forces institutions to collide.

It creates delay.

It produces stalemate.

It requires negotiation.

It leaves presidents furious with Congress, Congress furious with presidents, politicians furious with judges, judges skeptical of political branches, and citizens furious with everybody.

Good.

I am far more frightened by a government in which everybody obeys one person or one institution.

An independent Supreme Court is part of the defense against that outcome.

So is an independent Congress.

So is a constitutionally constrained presidency.

So are federalism, elections, impeachment, judicial review, congressional oversight, appropriations, confirmation, vetoes, veto overrides, constitutional amendments, and the stubborn insistence that no public official gets everything he or she wants.

That is why the suggestion that the Supreme Court should become anybody’s pawn should offend Americans regardless of party.

But defending judicial independence requires intellectual honesty.

Congress changing the number of Supreme Court seats is not automatically unconstitutional simply because somebody calls it court packing. Congress has changed the number before. The Constitution does not specify nine. Congressional constitutional analysis recognizes broad legislative authority over the Court’s structure subject to genuine Article III limits. (Constitution.gov)

At the same time, the fact that Congress may possess an authority does not mean every use of that authority deserves applause.

Expanding the Court for naked partisan advantage could begin an institutional arms race capable of doing immense damage.

Trying to remove Article III judges through ordinary legislation raises a different and much more direct constitutional problem.

Trying to intimidate judges into favorable rulings attacks the reason judicial independence exists.

Pretending the Supreme Court possesses unlimited authority simply moves the constitutional danger in the opposite direction.

And treating the president as the superior officer of the other branches abandons separation of powers altogether.

The question is bigger than thirteen justices.

It is bigger than eighteen-year terms.

It is bigger than Donald Trump.

It is bigger than Democrats.

It is bigger than Republicans.

The question is whether Americans still believe constitutional restraints apply when those restraints interfere with something they desperately want.

That is the test.

Not whether we can quote Madison when our opponents control Congress.

Not whether we suddenly discover Article III when the Supreme Court majority changes.

Not whether executive authority becomes sacred the moment our candidate enters the Oval Office.

The test comes when our own side has enough political strength to cross a line and we tell them no.

No, you do not own the Court.

No, you do not own Congress.

No, you do not own the presidency.

No, winning an election did not suspend the Constitution.

No, political victory did not transform constitutional restraints into optional suggestions.

No branch of the federal government belongs to a president, a party, a movement, a donor class, an ideology, or nine justices.

Those institutions belong to a constitutional system established for the American people.

If we defend separation of powers only when it restrains the people we hate, then we never believed in separation of powers.

We believed in restraint for our enemies and freedom for ourselves.

And that is not constitutional government.

That is the beginning of its surrender.

References

Congressional Research Service. (2023). Congressional control over the Supreme Court (R47382). Congress.gov. (Congress.gov)

Congressional Research Service. (2021). “Court packing”: Legislative control over the size of the Supreme Court (LSB10562). Congress.gov. (Congress.gov)

Federal Judicial Center. (n.d.). Congress and the courts: Landmark legislation. (Federal Judicial Center)

Federal Judicial Center. (n.d.). Supreme Court of the United States: Legislative history. (Federal Judicial Center)

Federal Judicial Center. (n.d.). The Supreme Court of the United States and the federal judiciary. (Federal Judicial Center)

Library of Congress. (n.d.). Article III. Constitution Annotated. (Constitution.gov)

Library of Congress. (n.d.). Overview of congressional control over judicial power. Constitution Annotated. (Constitution.gov)

Library of Congress. (n.d.). Overview of federal judiciary protections. Constitution Annotated. (Constitution.gov)