Earlier today, the White House released a statement from Adam White, who served on the President’s Commission on the Supreme Court of the United States, outlining why he believes the reforms the panel analyzed are dangerous. It merits careful reading.
White puts reforms to a simple test: “Would the changes improve the Court’s capacity to function as a court?” His answer is emphatically no to court-packing. He delivers an compelling rebuttal to term limits for the Court. If these are keyed to presidential terms, White argues, they risk delegitimizing the Court by dragging them further into the rhythms of electoral politics.
White’s most intriguing concrete suggestion is legislative attention to the authority of lower courts to issue injunctions with nationwide force. But generally, and most importantly, White diagnoses a failure of self-restraint in our constitutional institutions as a whole, one that envelops judges as well. That is his most powerful insight.
Ultimately, White concludes, confining judges to the exercise of judgment rather than force or will is a matter of judicial self-restraint. This seems right to me, and I have written on it myself as well. We tend, quite wrongly, to see constitutional powers as things properly pursued to the hilt until they meet an obstacle. Still, as a tribute to his thoughtful statement, a couple of questions for White suggest themselves.
First, the American regime of separation of powers depends on ambition counteracting ambition, not on self-restraint. Did Publius discount the power of “mere judgment” in a mature republic? Put otherwise, was Brutus right?
Second, while I share White’s conclusions about court-packing and term limits, I wonder what instills an institutional culture of self-restraint if options like these are wholly off the table. They are not off the table, of course, which is why White is arguing against them. But the problem with legislative tools for controlling the judiciary–here impeachment might be a better example–is not so much that they are not used as that judges know their use is unthinkable. Institutions must form people suited to their purpose. But external constraints are significant forces in institutional culture. Whence the self-restraint on which White (and I) depend?
In any case, give the statement a read. It is a reminder that White is one of our most sophisticated originalist thinkers.