Should she win the US presidential race on Wednesday (AEDT), and if the Democrats hold the US Senate, then democracy may suffer a wild ride of a different sort.
If Harris and her fellow Democrats succeed in their plans to “reform” the US Supreme Court, Alexander Hamilton will not just roll in his grave, he will surely rise up and hand deliver copies of one of his most famous founding documents about SCOTUS.
Harris has said that she wants “some kind of reform” and Democrats have lined up with a range of proposals that she has not ruled out. We’re familiar enough with a president trying to “stack” the court with preferred judges.
Some Democrats have something more radical in mind. They want to pack the court. They propose increasing the number of justices from nine (the composition of the Supreme Court since 1869) to 15 over three presidential terms.
The reason? Democrats aren’t shy. They don’t like the decisions of the current conservative-leaning court. They claim that Americans have lost confidence in the nation’s highest court, especially after the Dobbs decision that overturned the progressive invention of new abortion rights in Roe v Wade. Proposing to pack the court is a great way to fire up your political base in the lead-up to a presidential election.
Ever since an earlier Democrat president, Franklin D. Roosevelt tried and failed to pack the Supreme Court in 1937, proposals like these have been mere daydreams on the fringes of the mad left. So mad that a Senate judiciary at the time said this: “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”
Never say never. Packing the court with more judges to change its ideological bent has become part of the progressive mainstream. That doesn’t make this proposal any less dangerous. Hamilton will explain why in a moment.
The other “reform” proposals include congress enacting term limits for judges, laws to govern judicial ethics, and a law to require a two-thirds majority of judges to declare an act of congress unconstitutional.
This is a radical attempt by congressional Democrats to grab power from the Supreme Court. It will drown the Court in political games regardless of who’s in charge of the White House and congress. If the Democrats pass these laws to undermine the court’s independence, it’s likely that when the tables turn, a Republican president and congress will return fire.
First principles should guide us every day of the week. And they need to be shouted from the rooftops when politicians try to undermine the independence of courts.
Those first principles are set out in The Federalist Papers. Written after the American Revolution by Alexander Hamilton, John Madison and John Jay, the Federalist Papers convinced the states to ratify a new federal constitution. They argued, successfully, for a series of fundamental checks and balances between three arms of government to ensure America was equipped to respond to the challenges of nationhood.
We know from the musical that Hamilton was a genius; and that he wrote 51 of the 85 essays in the Federalist Papers. Among them is Federalist 78, written in 1788. It’ a gem that Harris and fellow Democrats have tossed aside.
The judiciary, Hamilton wrote, will always be the “least dangerous” branch of government – provided it remains independent from the executive and the legislature.
“The executive not only dispenses the honours, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
Hamilton explained that although “individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter … so long as the judiciary remains truly distinct from both the legislature and the executive. For I agree that ‘there is no liberty if the power of judging be not separated from the legislative and executive powers’.”
Long before the Democrats’ radical plans to play political games with the US Supreme Court, Hamilton understood that the courts are “in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches”. “Liberty,” he wrote, “can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”
Hamilton explained why courts must check the power of parliaments that try to act beyond their legislative power. “There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void,” he wrote.
“No legislative act, therefore, contrary to the constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.”
He said that a constitution must not enable “the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”
Using capitals to fine effect, Hamilton reminded judges of their place too. He said if judges are “disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body”.
Hamilton understood that, in coming years and centuries, when sufficiently annoyed with judgments of the US Supreme Court, politicians would try to chip away at the court’s independence.
A recent edition of The Harvard Law Review claimed that those calling for reform after recent Supreme Court judgments on climate change and abortion are not sore losers. Instead, the court’s judgments “crossed a moral line” and are “causing grave substantive harm” to the country.
Translation: court “reformers” aren’t angry about Supreme Court decisions; they are VERY angry. And that warrants undermining judicial independence. Those are my capitals, not Hamilton’s.
When Hamilton’s brilliant enunciation of the separation of powers is ignored even by legal academics, and by those in high political office, it’s little wonder that ordinary people struggle to appreciate the importance of judicial independence.
It’s worth reading (or re-reading) Hamilton’s Federalist 78. If more among our current elected representatives understood these first principles well enough to defend them, simply and forcefully, our future would be brighter. As Abraham Lincoln said in his famous Gettysburg Address, liberty is unfinished business. The living must fight for the principles that secure the liberty of future generations.
Hamilton II – The Musical, anyone? The next musical could put Federalist 78 to music, add a touch of rap, and hey presto, even the left might learn something about the role of the courts.
More Coverage
Family trusts get a second wind after court ruling on entitlements
A key court decision has found that the Australian Taxation Office incorrectly penalised many investors for breaking anti-avoidance laws – and now the tide may have turned.
Kids’ teeth troubles? You can’t always blame the parents
Parents are used to copping the blame for their children’s health, but sometimes problems with teeth have another root cause. The trick is knowing what you do next.
Donald Trump is often described as a threat to democracy. His behaviour after the 2020 election was nothing short of despicable. But only dills would claim that democracy is automatically safe in the hands of Kamala Harris.