The John Roberts Court, in my opinion, is the worst Supreme Court since the Roger Taney Court, which gave us the Dred Scott decision. Rulings that ended abortion rights, unleashed corporate spending in political campaigns, handcuffed federal agencies, throttled carbon emissions regulations, weakened labor protections, blessed discrimination against transgender people, and largely immunized presidents who commit crimes have not only produced bad outcomes, but were poorly reasoned and betrayed a conservative activist philosophy.
And yet a 7-2 majority of the Court, including all three of President Donald Trump’s appointees, refused to greenlight his scheme to disrupt mail voting for the midterm elections. The decision prompted Trump to trash the Court in a social media screed, not just for the mail ballot case but also for opinions that limited his tariff powers and upheld birthright citizenship:
This Supreme Court is bullied and cajoled by the Radical Left into making decisions that have set America back at least a hundred years. These are not the people I interviewed to serve on the United States Supreme Court; they are merely a shell of their original selves, a Court that is costing the United States Trillions of Dollars with shockingly bad rulings that are of such magnitude that it won’t be easily possible for our Country to recover or heal.
Of course, people on the left were not the ones trying to bully John Roberts, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett; in fact, the left had largely written them off as hopeless. The Bully-in-Chief is Donald Trump, and what’s important is that his bullying failed.
That fact does not make the conservative quartet heroes. It does not erase all the other poorly reasoned opinions they have issued. But it does prove that America’s judicial system, as designed by the Founders, still works.
The Constitution established a judiciary independent of the executive and legislative branches. Even though the President nominates jurists and the Senate confirms them to the bench, lifetime appointments eliminate the other branches’ ability to influence judicial rulings through political pressure. This was not an accident of history, but a deliberate choice.
Federalist No. 51, written by James Madison, argues for a system of checks and balances in part to prevent a tyranny of the majority: “In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature.”
And Alexander Hamilton’s Federalist No. 78 applies Madison’s logic to the rationale for lifetime judicial appointments. He observed that judges can’t significantly violate liberty on their own: “though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.”
In other words, the judiciary lacks the enforcement power to violate liberty by itself broadly. For example, the Dobbs ruling could not have stripped women of reproductive freedoms without the subsequent actions from state legislatures and governors (which, thankfully, most have forsaken). “Liberty can have nothing to fear from the judiciary alone,” argued Hamilton, “but would have every thing to fear from its union with either of the other departments … from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.”
To insulate the judiciary from such political pressure, Hamilton concluded, “nothing can contribute so much to its firmness and independence as permanency in office.” He underscored the point:
This quality may therefore be justly regarded as an indispensable ingredient in its Constitution, and, in a great measure, as the citadel of the public justice and the public security … If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
While the current Supreme Court is unquestionably conservative, it also defied Trump on several high-profile cases over the past year. And no example better validates Hamilton’s argument than the Court’s decision to keep in place a universal injunction barring Trump from implementing executive orders that would interfere with mail ballots. If Trump had any leverage over the justices that he appointed, then the justices would not be free to ignore his pressure tactics; Trump would be able to manipulate the election, and democracy in America would cease to be.
Or consider an alternate timeline in which, during the two years Joe Biden was president with a Democratic Party-controlled Congress, the filibuster was abolished, and Democrats expanded the Court and installed more liberal judges by a simple-majority, party-line vote. Or, more modestly, enacted reforms such as term limits, but still with only narrow partisan support. Such acts would not have violated the letter of the Constitution or federal law, but they would have violated the Constitution’s spirit and subtext—kneecapping checks and balances and girding against the tyranny of the majority. Then once Trump and a Republican Congress returned to power, the weakened judiciary would be ripe for full takeover. With Democrats having set new precedent and Senate Republicans supine, Trump could have imposed his will on the Court and engaged in his own court-packing. With a judicial majority of lackeys, Trump’s assertions of executive power would not be checked. The military would be in American cities. Birthright citizenship would be abolished. And Trump would seize control of the election apparatus in all 50 states. We would literally be in an authoritarian state with little recourse to fight back.
And we know this can happen in modern times in ostensibly democratic political systems because we have seen it happen. Hungary, which has a parliamentary system of government without strong checks and balances between branches, proved vulnerable to authoritarianism when Viktor Orban became prime minister in 2010, and his party held a legislative supermajority. Orban rammed through a new constitution, forced 300 judges into early retirement, and limited judicial review, helping him consolidate power and rule with an iron fist for 16 years. Orban was only able to be dislodged from power after his government pardoned a man who had covered up child sex abuse. A member of Orban’s party blew the whistle, leveraged the scandal, and led a new opposition party to victory in the April 2026 parliamentary elections.
When Democrats regain control of the presidency and Congress, they will have their hands full repairing the damage from the Trump presidency. But there is always a risk of overcorrection when problems are misdiagnosed. Our Supreme Court problem is primarily with individual justices, not the structure. It may be maddening that the Court’s ideological composition can’t be changed without some (potentially macabre) luck about when vacancies open and which party is in power at the time. And attempts to improve the structure may be well-intentioned, driven more by a desire for ideological balance than by a desire to rig outcomes. For example, the oft-touted idea of staggered 18-year terms would end the random nature of Supreme Court appointments where a President Jimmy Carter gets no vacancies to fill and Richard Nixon has four, and provide some insulation from politics albeit not as much as a lifetime appointment.) But the bottom line is this: Once structural reform can imposed by simple majority party-line vote, they can also be reversed, or worse, in the same fashion once the political winds shift, as they always do.
Fiddling with the Founders’ design comes with enormous risk. Democrats should recognize how that design is working properly during a midterm election where they stand poised to win control of the House and perhaps the Senate, bringing them one step closer to remaking the Court the old-fashioned way—through nominations and confirmations, not court-packing and rule-changing.
