An alternative approach might address the power of the Court itself. On this, too, there has been no shortage of discussion. Indeed, as far back as the ratification debates, the Anti-Federalist Brutus augured the advent of judicial supremacy. The Constitution could make the justices “independent of the people, of the legislature, and of every power under heaven,” he wrote. “Men placed in this situation will generally soon feel themselves independent of heaven itself.”

Today’s commentary aimed at reining in the excessive judicial intervention and erroneous decision making focuses on a range of other reasons why Court reform is due: the marked increase in the number of federal lawsuits filed; the record-low number of cases on the Court’s docket; the lack of diversity on the bench, particularly given that 108 of the 115 justices have been white men; the heated judicial-confirmation battles and novel constitutional hardball tactics—such as the Senate Republicans’ refusal to hold hearings for a Democratic nominee to a vacant Supreme Court seat eight months before a presidential election, while ramming through a Republican nominee just eight days prior to the following election.

Justice Stephen Breyer has been a vocal critic of proposals to restore legitimacy to the high court, including amending the Constitution to impose judicial term limits. President Joe Biden, making good on a campaign promise, has impaneled a commission to study the issue, though many believe the group will not endorse any significant reforms. And although justices have weighed in on the need for constitutional change in the past, and presidential commissions have laid the ground for constitutional reform, the fact of the matter is that when it comes to amending our national charter, neither the president nor the members of the nation’s highest court possess a formal role. Article V—the section of the Constitution that lays out the process for adding amendments—leaves the levers of change with federal and state lawmakers, so that the representatives of the people, who are the ultimate sovereign, lead the charge on their behalf.