The Supreme Court needs to be cut down to size. So argues Professor Michael Stokes Paulsen in a recent article on National Review Online, responding to Senator John McCain’s recent statement that Senate Republicans might be justified in refusing to confirm any judge nominated to the Court by a President Hillary Clinton. According to Paulsen, McCain “does not go far enough.” In light of what he regards as the Court’s “judicial activism,” as well as the political vitriol associated with Court appointments, Paulsen calls for congressional measures that would prevent the confirmation of any judges nominated to the Court by any president until the Court is shrunk to six members. This, he contends, will lead to less activism and make the appointment process less controversial.
Paulsen’s proposal is badly misguided. The Supreme Court is duty-bound to enforce the Constitution, not to promote national harmony. Those who want the Court to discharge its duty should focus on the quality of judicial appointees rather than the number of justices.
Paulsen stumbles out of the gate by failing to articulate a precise definition of “judicial activism.” He states that activism is “harmful to the Constitution,” which suggests that he is defining activism as departure from the original meaning of the Constitution. But Paulsen goes on to cite decisions that are generally supported by conservative originalists—namely, Citizens United v. F.E.C. and District of Columbia v. Heller—as well as decisions that conservative originalists generally reject—namely, Obergefell v. Hodges, Roe v. Wade, and NFIB v. Sebelius—as having done a “substantial amount of harm.” An “activist” decision, then, seems to be “a decision that causes liberals and conservatives to fight to the death over judicial nominations.”
This is a strange way for anyone to define judicial activism, let alone an originalist. In his academic work, Paulsen has focused on the original meaning of Article VI’s Oath Clause—which requires that judges no less than other government officials publicly promise to “support this Constitution.” This requirement would be meaningless if officials were free to subsequently disregard the Constitution in favor of their own notions of justice or their own desire to avoid controversy. Paulsen’s focus on extralegal considerations is in considerable tension with the meaning of the document from which judges draw their extraordinary power over their fellow citizens.
Paulsen’s proposed solution fares no better than his statement of the problem. Paulsen claims that “activist majorities become mathematically harder to put together” when the Court is small. Thus, he argues that Congress should “pass a simple bill to allow the Supreme Court’s membership to gradually decrease to six justices,” or, in the event of a presidential veto, the Senate should “adopt a standing rule” that has the same effect.
Paulsen’s mathematical argument is easily refuted. There is no inherent connection between the number of justices and activism, however defined. Surely Paulsen would not seriously argue that a Supreme Court consisting of Justices Kennedy, Sotomayor, Kagan, and Breyer would be less likely to reach activist decisions than one that also included Justices Thomas and Alito. How the justices interpret the Constitution and how they approach constitutional cases—whether they broadly defer to assertions of government power or instead judicially engage, making impartial, evidence-based determinations of whether the government is pursuing constitutional ends through constitutional means—makes all the difference.
The most profound problem confronting the federal judiciary today is not the Court’s willingness to decide controversial cases. It is the Court’s abdication of its duty to consistently maintain the rule of law, and its formulation of doctrines that require lower courts to do likewise. That abdication is why we have a federal government whose powers are anything but “few and defined”; why countless federal regulations touching seemingly every aspect of our lives—regulations with the force of law—are made not by legislators but unaccountable bureaucrats at executive agencies; why federal courts apply “heightened scrutiny” to governmental burdens on a handful of “fundamental” constitutional rights by the Court on the basis of vague, ever-shifting criteria while relegating others, like the right to earn a living, the right to acquire and enjoy property, and even the right to try to save one’s own life, to “rational-basis review”, which all too often is tantamount to no review at all.
We do not need a smaller, more timid Court. We need justices who are both faithful to the Constitution and unafraid to challenge a jurisprudential status quo that in many and consequential contexts has little to do with the Constitution. And we will not find those justices if we do not know what to look for. Paulsen offers readers no help in this regard.