By: James Freeman – wsj.com – June 8, 2023
A new Mason-Dixon poll shows little support for congressional encroachments on the judiciary.
Outrageous rhetorical assaults on the federal judiciary by partisan legislators have unfortunately become a progressive political norm. Such offenses invariably arrive along with proposals from such legislators to restructure the court system to achieve political ends. But 235 years after Alexander Hamilton famously explained why the judicial branch of our government must remain independent of the legislature, thank goodness most Americans still agree with him. That’s according to the latest Mason-Dixon poll commissioned by the First Liberty Institute, which advocates for religious freedom.
As for the rhetorical assaults packaged with partisan restructuring proposals, recently the staff of Sen. Ed Markey (D., Mass.) was kind enough to compile an illustrative collection in one slim volume. In the space of a mere press release calling for expanding the number of Supreme Court justices from nine to 13, the document attributes to Mr. Markey the despicable lie that Republicans have “stolen the Supreme Court majority,” then quotes Rep. Cori Bush (D., Mo.) falsely describing the court of duly confirmed Justices as “illegitimate” before appealing to the authority of a series of special-interest groups angered that the court hasn’t chosen to grind their ideological axes.
Fortunately the voters who are the real authority in this country don’t welcome such bullying from the legislature. The Mason-Dixon poll of 1,100 registered U.S. voters found that a full 91% agree with the following statement:
An independent judiciary is a crucial safeguard of our civil liberties.
As for the changes the bullies are seeking to enact, they are not exactly popular. Here are the results from Mason-Dixon on the overall question of structural reform:
QUESTION: Do you support or oppose amending the U.S. Constitution to change the structure of the U.S. Supreme Court?
Here are the results on the particular reform the bullies have been pushing:
QUESTION: For over 150 years, the United States Supreme Court has had nine justices. “Court-packing” is generally defined as increasing the number of Supreme Court seats, primarily to alter the ideological balance of the court. Do you support or oppose “court-packing”?
Mason-Dixon also queried voters on another change advocated by leftist legislators. Some may quarrel with the way this question was worded, though it’s hard to say that anything in the description of the issue is inaccurate:
QUESTION: Each branch of the federal government — the Executive, Legislative, and Judicial — is separate and co-equal. In recognition of the separation of powers and judicial independence, the judiciary has always established its own ethical rules for judges. Since 1973, the code of conduct and ethical rules for judges has been set by the Judicial Conference of the United States.
Now, some members of Congress are threatening to take over setting the rules for judges and forcing them to comply. Do you believe that Congress taking over and setting rules for judicial ethics would or would not violate the separation of powers and threaten judicial independence?
WOULD NOT 20%
NOT SURE 11%
Perhaps the overwhelmingly negative response to the idea has something to do with the framing of the question. On the other hand, maybe a lot of Americans just understand what’s at stake when legislators seek new powers over the judiciary. This column should offer the usual caveats about the imprecise nature of political polling. But it’s also worth noting that at least according to the FiveThirtyEight website, Mason-Dixon is among the country’s most accurate surveyors of public opinion.
Those opposing this potential violation of the separation of powers do have a lot of history on their side. “The complete independence of the courts of justice is peculiarly essential in a limited Constitution,” wrote Hamilton in Federalist 78. He noted the specific need for the judiciary to be independent of Congress in order to enforce limits on legislative power:
Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing…
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community…
An independent judiciary is critical in protecting us not only from politicians like Ed Markey but also from the interest groups who manipulate him.
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