Without A Strong Court, Who Watches the Watchmen?

In his seminal graphic novel, The Watchmen, author Alan Moore presents a near future dystopia where law enforcement, unable to protect the citizenry, is supplanted by crime-fighting vigilantes. With no clear check against the vigilantes’ abuse of their power, the public quickly turns against these masked “heroes” using the oft repeated rallying cry: Who watches the Watchmen?

Taken from the roman poet Juvenal, this question of “who will guard the guards” is a centerpoint of the American constitutional system. The Founding Fathers created three co-equal branches of government, each designed to serve as a check against the unbridled power of the others.

Unfortunately, it seems that this structure of checks and balances is once again under attack by the left. President Biden’s announcement of the Presidential Commission to examine “reforming” the Supreme Court for partisan gains forces us to beg the question; if the Supreme Court loses its judicial independence, then who will watch the watchmen? Perhaps more compellingly, who will serve as the check against unconstitutionality?

The Big Picture

Following the confirmation of Justices Gorsuch, Kavanaugh, and Barrett to the Supreme Court under President Trump, progressives and leftists have increasingly decried the conservative makeup of our nation’s highest court. In response to this pressure from the far left, President Biden — along with Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer — has expressed interest in “reforming” the Supreme Court through various means.

The most worrisome of these proposals is the Democrats’ assertion that they are not necessarily opposed to expanding the size of the Supreme Court, otherwise known as court packing. Fortunately, for now, it appears that Republicans and moderate Democrats are holding the line, but the question remains whether or not Democrats will advance measures that would gut the judicial independence of the Supreme Court as we know it.

The Details

The History

• The size of the Supreme Court has been set at nine since 1869.
• President Franklin Roosevelt attempted to pack the court in 1936 in an effort to turn the Supreme Court into a rubber stamp for the New Deal and has been universally admonished for even attempting to do so.
• Even Justice Breyer and the late Justice Ruth Bader Ginsberg opposed court packing, with Ginsburg stating: “If anything would make the court look partisan, it would be that — one side saying, ‘when we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.”

The Presidential Commission

• In April 2020, President Biden established a 36-member commission to examine “principal arguments…for and against Supreme Court reform.”
• This ostensibly bipartisan commission was charged with examining such issues as expanding the size of the Supreme Court, imposing term limits on Justices, and reforming court procedures.
• Part of the Commission’s charge is to hold hearings and allow for public comments on the issues in question.

Why It Matters

Judicial independence of the Supreme Court is a cornerstone of our republican system of government. As was the case during the Roosevelt Era, packing the court, or even implementing term limits, because the majority party is unhappy with the court’s makeup fundamentally undermines judicial independence. The Supreme Court should be given the leeway to examine and determine questions of constitutionality without fear of reprisal from the Executive Branch. Furthermore, packing the court for blatantly partisan purposes is likely to undermine the public’s faith in our courts, and our government as a whole.

In America, the Supreme Court is supposed to be the ultimate check against the immense power the President and Congress hold over all of our lives. If progressives and leftists succeed in their push to undermine the Court, then who will provide the check against violations of our constitutional liberties? If the Supreme Court loses its ability to effectively constrain the federal government, then who will guard the guards themselves? Who will watch the watchmen?