Like Jeff Tulis, I admire Adam White’s work. I appreciate both his skepticism of court-packing and his case for self-restraint. And I certainly appreciate Greg Weiner’s point that political actors should not push their constitutional power to the limit. That institutional restraint can be a virtue. Though, if anything, Congress often seems too restrained.
But two points are in order.
First, White is right to worry about whether court-packing and terms limits might cause the Court to be more politicized. In the current environment, he points to some important problems with 18 year term limits for the justices oriented around each president getting two Supreme Court nominations (which has wide support across the political spectrum). But his analysis is also strangely detached from the current political environment. The Republican controlled Senate, for the first time since 1840, refused to consider the Supreme Court nomination of a sitting Democratic president because it was within nine months of a presidential election. That same Republican controlled Senator then pushed through a Republican president’s Supreme Court nominee with weeks to go before a presidential election. This matters. I don’t think court-packing is necessarily the answer, but we cannot pretend this did not happen. Worse, the justices themselves have aided the politicization of the Court. Justice Alito has taken to engaging his critics directly. Justice Barrett, with a straight face, gives a speech with Senator Mitch McConnell at her side at a center named after him, bemoaning that the Court is too often treated in a partisan manner. The problem here is not simply institutional, but, as Adam has written about in a compelling manner, a lack of virtue. So what is to be done? Maybe nothing. But let’s be clear the status quo also allows some forms of politicization to persist. Senator McConnell has already hinted that if Republicans control the Senate after 2022, it would not consider a Supreme Court nominee from President Biden before the 2024 election. Let’s also admit that the late Justice Ruth Bader Ginsburg shares some of the blame for our current situation, empowered by a lifetime appointment, in thinking she was irreplaceable. This is one of the things term limits is meant to remedy.
Second, the case for judicial self-restraint, while deeply appealing, is more complex than either Adam or Greg make it out to be. When should the Court defer? On what grounds? Should it defer when states are placing burdens on constitutionally protected voting rights? Should it defer when states are creating laws that burden constitutionally protected rights of speech? Is it deference to overturn a nearly 50 year old precedent? Is it deference to leave it in place? The case for judicial self-restraint, much like the case for judicial engagement, requires more than saying that judges should stick to rendering “judgment” and not using “force or will.” I agree entirely that judges should only exercise judgment. But just how and where we draw that line is the subject of much debate. Indeed, considering when judicial deference is in order, and what it actually looks like, is a constitutional judgment that reasonable people disagree about.