- - Tuesday, April 27, 2021

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.


One of the most important components of the constitutional scheme of checks and balances is an independent judiciary.

The independent judiciary is among the crucial American institutions that are under attack from without and within. We must protect it, for it is an essential though often overlooked part of American exceptionalism.

Most Americans take our judicial system for granted. We don’t give a second thought to the fact that when we go to court, justice is usually done. Our contracts are enforced, personal injuries are remedied. In criminal cases we are judged fairly by juries of our peers. From Judge Judy to the Supreme Court, most Americans believe the scales of justice are evenly balanced, because they are.

Equally importantly, and unlike most countries, our judiciary has the power and responsibility to hold the other branches of government to their assigned powers. Courts routinely strike down unconstitutional laws, which we often barely notice. But that phenomenon would astonish people who live in countries where the courts are an appendage of the regime.

I often judge a country’s freedom by what would happen if a person burns its flag in the public square. Imagine the consequences if you did that in China or Russia. Here, by contrast, burning the American flag is protected free speech, as proclaimed by our nation’s highest court.  

More than perhaps any other country, we are governed by the rule of law rather than by the rule of a single person, group of people, or ideology. Judges are far from infallible, and we often disagree over the right outcomes in cases. But the most humble litigants often prevail in the courtroom over the mighty. Constitutional principles matter far more than which litigant wields greater financial resources or political clout.

Not so in the world’s authoritarian countries, in which an independent judiciary is intolerable. The chief justice of the Chinese Supreme Court, for instance, warned against adopting western notions of an independent judiciary. The purpose of the Chinese judiciary, he declared, is to support the Communist Party.

Our foreign enemies understand the central role of the independent judiciary in preserving American exceptionalism. The Russians, in particular, have engaged in a social media disinformation campaign to undermine public support for our courts. They publicize controversial court decisions and try to inflame public opinion against the courts that render them.

It seems to be working. When the Supreme Court recently denied review in an election case, social media was filled with memes and posts by conservatives calling justices appointed by President Trump “traitors” and accusing them of corruption and violating their constitutional oaths.

These are both serious and absurd charges. But if Americans begin to believe judges render decisions based on anything other than their good-faith view of the law, it would corrode our nation’s confidence in the independent judiciary so essential to maintaining the rule of law.

On the left, similar distrust has led to calls to pack the Supreme Court with additional justices to secure desired judicial outcomes. Such a change is within Congress’ power to make but would have disastrous results.

Just as when President Franklin Delano Roosevelt tried to expand the Supreme Court’s size, the goal is clear: to procure judicial decisions that the current government favors. The Supreme Court would become merely another political body, comprising not an independent check on government power, but merely a rubber-stamp for the party in power — exactly the role the judiciary plays in countries such as Russia, China, Venezuela and Poland.  

That is why many thoughtful liberals, Justice Stephen G. Breyer foremost among them, have warned against court-packing. The better way to effect change is for Americans to elect presidents and senators who will appoint judges who reflect their constitutional principles.

Our Constitution’s framers brilliantly conceived the independent judiciary, invested with lifetime tenure, as a guardian of our freedoms and a constraint on government excesses. We all disagree with some court decisions. But by and large, the courts have shielded our Constitution and the precious rights it protects. It is a unique part of our American constitutional inheritance that we must preserve, as the oath of allegiance for new citizens and the oaths of office for all federal government officeholders reflects, against “all enemies, foreign and domestic.”

⦁ Clint Bolick is a justice on the Arizona Supreme Court and research fellow with the Hoover Institution.

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