In his Year End Report on the Federal Judiciary, Chief Judge John Roberts argued against the efforts in Congress to enact laws to control a “separate and coequal branch” of government. While the public and academics argue about term limits and court-packing, Roberts addressed what, to outsiders, may seem relatively uncontroversial controls that Congress wants to impose.

[M]uch of the chief justice’s report was focused on thwarting less contentious efforts by Congress to address financial conflicts and workplace misconduct in the judicial system. Both issues are the subject of proposed legislation that has drawn bipartisan support.

The sexier issues are “pie in the sky” changes that aren’t taken very seriously as threats to the Court. But another battle has been going on for ages, even though it’s largely been fought outside the public’s view. Congress, in general, and the Senate, in particular, wants to be in a position to control the Least Dangerous Branch of Government.

There are ham-handed flagrant threats posed by Sen. Sheldon Whitehouse in his brief that wasn’t really very friendly, but there have been years of efforts to find the Court unable to manage itself to the public’s approval, giving rise to support for Congress to step in, take the reins and steer the Court to whatever safe ground will sell to the public. The only thing holding Congress back was that the Supreme Court enjoyed a far higher public approval rating than Congress. The Court may be far from perfect, but the public wasn’t behind a far less perfect institution controlling its better.

But now, after years of media and pundits haranguing the Court, stating with certainty that it was illegitimate, partisan and about to destroy life as we know it any minute now, public approval has finally caught up with the rhetoric and the Court finds itself on the edge. It’s not that the Court has really done much legally to justify this doubt, but that decisions from Citizens United to Shelby County to the Texas SB8 punts fed into the cries that the these “unelected” nine justices, one to three of whom sit on stolen seats (according to how tightly one can shut one’s eyes and pretend), are finally about to ruin a nation.

Something must be done.
This is something.
This must be done.

What’s wrong with that, you ask? It’s painful to find myself in a position of defending the status quo when it comes to the Supreme Court. There is so much wrong there, so much that needs fixing. The output is embarrassing negligible, with the Court taking a ridiculously small number of cases, and then cranking out ridiculously long decisions that still leave half the necessary pieces off the table to be decided some other day.

There are management problems in the federal judiciary, and judges of dubious character and conduct who are likely to hear little more than a whisper from their district’s chief judge to clean up their act. Which they won’t do because they’re gods. And this just scratches the surface of a complicated judicial system with circuits, districts and tons of people in robes, each possessing the ability to wreak havoc, at least for a little while, across a nation.

Isn’t it about time to change this mess?

Perhaps it is, but handing over more control to Congress to make the judiciary more politically responsive will be the worst of all possible worlds. To use an example, did the Supreme Court’s decision in Brown v. Board of Ed have widespread public support? If the Court took the public’s approval into account, would there have been a Roe v. Wade issue today? And then there’s Miranda and Gideon. Or Heller? None of these decisions would likely have happened if the Court was that democratic institution so many believe today it should be.

But there is a more important issue at stake. Stability. As bad as some decisions are (and I’m thinking of the Court’s most harebrained nonsense like Whren or Harlow v. Fitzgerald, neither massive change nor constant upheaval would be a better way to rule. We need to know what the law is, for better or worse, so that we can know how to conduct ourselves, our businesses, our institutions and our lives. We need to be able to rely on the law being relatively clear and certain or anything that we do today can be criminalized or legalized tomorrow, and then reversed again next term.

This is a painful position to take, both because there are justices on the court in whom I repose little faith that they will be able to free themselves from ideological perspectives to consider the cases before them with the degree of impartiality that they should, and because the Court has made some monumentally bad decisions, particularly in the area of criminal law, where it has bent over backwards to enable law enforcement to be the worst it could be. I’ve argued vehemently against these decisions, about how little they reflect reality in the trenches and on the streets, and about how cloistered justices have no clue how their  cop fantasies will play out on the heads of people who piss them off.

But it would still be better to fight these battles in the well of district courts, on the podium in circuits and at One First Street, then to have Senator Whitehouse or Senator Glassley call up the Chief Justice and let him know where they want the Court to come out. Or else. As C.J. Roberts assumed the duty as protector of the institution, he’s got some work to do cleaning up the mess, and calming the public’s growing belief that Linda Greenhouse may not be crazy after all. Please do it, Chief, because the alternative is becoming a very real possibility and your Court is bad enough as it is. We don’t need it to get any worse.