In Federalist No. 78, Alexander Hamilton described the judiciary as “beyond comparison the weakest of the three departments of power.” He reasoned that without “influence over either the sword or the purse,” the Court only has the power of judgment. Its authority relies not on coercive ability, but rather on the trust of both the other branches of government and the public in its integrity as an impartial arbiter of the law.
Yet today, this fundamental trust has deteriorated tremendously. A June 2024 poll by the Associated Press-NORC Center for Public Affairs found that 70% of respondents believe that Supreme Court justices are “guided by their own ideologies, rather than serving as an independent check on other branches of government.”
This crisis of confidence has seen the Court’s approval stall at historical lows, reflecting deepening skepticism about its role in impartially interpreting the Constitution. All the while, the Court has ruled on increasingly controversial issues that have shattered long-standing precedents on abortion rights, gun regulation, agency rulemaking, presidential immunity, and more. These decisions continue to entrench the perception that the justices are not neutral arbiters, but rather ideologues using their power to advance their agendas.
Compounding this concern is the growing discretionary power of the Court and its members. In recent years, the Court has expanded its use of the “shadow docket,” issuing potent injunctions and orders on upcoming cases with fewer transparency requirements. These orders can be made without oral arguments, often go unexplained, and do not disclose how individual justices voted. Adding to these concerns are allegations of ethics lapses, ranging from unreported trips gifted by billionaires to recusal failures, all exacerbated by the absence of mechanisms to enforce the Court’s recently-adopted ethics code.
These trends, which have compromised the Court’s independence, have largely gone unchecked by the other two branches. While President Biden recently called on Congress to act, briefly outlining reform proposals, the Republican-led House and the continuous cycle of Congressional gridlock and disorder endemic throughout the past decade likely means nothing will be accomplished in the realm of substantive judicial reform. House Democrats’ efforts to investigate and impeach justices due to ethical controversies are not likely to advance either. As a result, justices seem increasingly emboldened to rule with little regard for ethical standards, enjoying a troubling impunity granted by Congressional inaction.
Our Constitutional checks and balances system was designed so that each branch could hold the others accountable. However, as Congress fails to assert authority and provide necessary oversight, the balance of power tilts dangerously in favor of one branch: the judiciary. While it is essential to preserve judicial independence so that justices can make decisions without political pressure, the same independence cannot translate into unchecked power. By recentering the Constitutional framework of powers and seriously considering reforms like an enforceable code of ethics and term limits for Court justices, we can work toward restoring trust in the judiciary and reaffirming its role as the people’s independent intermediary for justice.
Checks and Balances
The Constitution established a framework of checks and balances, deliberately dividing powers among three co-equal branches of government. Each branch performs a distinct role within a holistic process: The legislative creates the laws, the executive implements them, and the judiciary interprets them.
The branches are also designed to serve as checks on one another. The president can restrain Congress with veto power, issue orders to guide executive departments in enforcing the law, and appoint federal judges who serve for life. Meanwhile, Congress can impeach and remove presidents for high crimes, define the scope and objectives of the executive departments they create, and confirm or reject presidential appointees.
The Supreme Court also holds key responsibilities in this checks-and-balances system through the power of judicial review. Rooted in Hamilton’s vision from Federalist No. 78, this authority was established in the landmark 1803 Marbury v. Madison decision, and is foundational to judicial power. Judicial review empowers courts to interpret the Constitution’s meaning and strike down unconstitutional actions. As a result, the judiciary — and ultimately the Supreme Court — serves as the Constitution’s safeguard, providing essential remedies when other branches overstep their authority.
In this role, the judicial power must be exercised with impartiality and integrity, as Hamilton emphasizes in Federalist No. 78. He writes, “The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.”
Hamilton insists that judges exercise “judgment” over “will.” He warns that otherwise, the result is legislating from the bench: unelected judges imposing their views instead of interpreting the Constitution.
Today, this concern is realized. The 2022 Dobbs v. Jackson Women’s Health Organization decision overturned nearly 50 years of reproductive rights precedent, prioritizing ideological goals over legal principles and disregarding the significant reliance interests built around the Roe and Casey precedents. While the Supreme Court can justifiably overrule precedent when it is unworkable, causes undue hardship, or when legal principles evolve, this power should not be exercised simply because justices disagree with previous rulings.
By simply disregarding stare decisis — the principle that courts should let precedent stand — the Court’s majority appears to be imposing its will, stripping away established rights, and acting as an increasingly imperial Court, exercising unchecked power with little accountability.
Who Checks? Who Balances?
While the Constitution envisions a balance of powers, modern practice is more complex. Constitutional scholars and even the justices themselves have differing interpretations about the extent to which branches should interfere with each others’ mandates. In July 2023, Justice Samuel Alito, responding to a question about the “Supreme Court Ethics, Recusal, Transparency Act” proposed by Democratic legislators, asserted that “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court.” Conversely, Justice Elena Kagan, speaking at a 9th Circuit Judicial Conference days later, argued that Congress has historically regulated aspects of the Court’s “structure,” “composition,” and “appellate jurisdiction,” though she conceded limits to its full authority.
Still, the debate over Congress’s authority to regulate the courts is not just theoretical. Over a century ago, Congress created the Judicial Conference to oversee the administration of federal courts, including enforcing the “Code of Conduct for United States Judges.” That code, adopted in the wake of a scandal that forced Supreme Court Justice Abe Fortas to resign, was designed to restore public trust after ethical breaches in the highest court.
Ironically, the Code of Conduct was never applied to Supreme Court justices, leaving the very institution that prompted its creation outside its scope. An unchecked Court is not imperial by its own doing — it is enabled by a deferential Congress that refuses to hold it accountable. When one branch wields unchecked power, it is only because another has chosen not to act. Congress must assert its power to regulate the Court, beginning with implementing an enforceable ethics code for the justices.
Restoring Balance
Advocates like former District Court Judge Jeremy Fogel and Noah Bookbinder demonstrate that Congress can regulate Supreme Court ethics. Their 2023 report outlined three ethics-related statutes — the “Ethics in Government Act,” “Ethics Reform Act,” and federal disqualification statute — that apply to current justices. These laws, they contend, establish a precedent of Congressional oversight that allows the Code of Conduct to be extended to the Supreme Court. In an era marked by growing public distrust in the nation’s highest court, implementing an enforceable code of conduct is critical to restoring confidence.
In addition to ethics reform, instituting term limits for Supreme Court justices is another proposal that has gained recent traction. The idea was central to President Joe Biden’s July 2024 Supreme Court reform proposals, and echoed a proposal by the bipartisan legal scholars of the American Academy of Arts and Sciences advocating for 18-year terms, with a new justice being nominated every two years.
The group argues that there are several “problematic features of life tenure,” including increasing term lengths and the uneven distribution of appointments across different presidencies. Life tenure also encourages questionable strategic behavior by both political actors and justices. Presidents now nominate younger candidates, expecting that they will remain on the bench for decades longer; justices, in turn, may time their retirements to ensure an ideologically similar president chooses their successor. Allowing justices and presidents to manipulate the timing of appointments for ideological advantage threatens judicial independence.
Another approach to reining in the Supreme Court is limiting its jurisdiction. Article III, Section 2 of the Constitution grants Congress the authority to control the Court’s appellate jurisdiction — the power to review and reverse lower court decisions. Most cases reach the Supreme Court this way.
Historically, Congress has exercised this power. During Reconstruction, it stripped the Court’s jurisdiction over habeas corpus appeals in order to prevent politically charged rulings. In the 1869 case Ex Parte McCardle, the Court upheld Congress’s actions and reaffirmed its Constitutional authority to define the Court’s jurisdiction. Applying this precedent today, Congress could restrict the Court’s ability to rule on certain pressing political issues that should be decided through the legislature, not the judiciary.
While this reform may limit judicial overreach, it fails to resolve the fundamental problem driving this trend: Congress’s own inaction. Instead of restricting the Court’s ability to rule on specific issues and igniting likely debate over balance-of-power concerns, Congress should focus on legislating real solutions to those issues themselves.
A dysfunctional Congress leaves a vacuum that the other branches, like the judiciary, inevitably must fill. However, the judiciary often lacks the appropriate tools or flexibility to provide the broad, forward-looking policy solutions the public seeks. The courts are bound by interpretation, not policy-making, yet they are often called upon to decide deeply divisive, multifaceted issues better resolved through the deliberative, transparent legislative process.
The Price of Inaction
With its inaction, Congress continues to effectively cede its power and authority in favor of the judiciary’s, letting courts overstep with little deterrence. Today, the Supreme Court operates with inconsequential checks and limited oversight measures, imposing its arbitrary will in lieu of faithful judgment. Although Alexander Hamilton insisted upon the “complete independence of the courts of justice,” modern challenges and circumstances have made it clear that judicial independence must not come at the expense of integrity, accountability, and public trust.
A clear disconnect has emerged between our Constitution’s design and contemporary function. The structure of our government, with its three “co-equal” branches, has been thrown out of balance. Now is the time to urge Congress to reform the Supreme Court. We need these reforms to restore trust in both Congress’s legislative authority and the Court’s integrity. Only then can the judiciary return to its role as a protector of the people’s rights rather than consolidating its own power. Without action, the Constitution’s delicate framework continues to erode.
