The bench is not a faction

National Review reports that sitting Supreme Court justices have been publicly criticizing their colleagues — not disagreeing in written opinions, which is entirely proper, but trading personal and institutional barbs in the broader public arena. The article's argument is simple: mudslinging is unbecoming to the nation's highest court. My argument is more structural: it is also dangerous to free government.

The Constitution vests 'the judicial Power of the United States' in the Supreme Court and such inferior courts as Congress shall establish (Article III, Section 1). It protects that power by granting tenure during good behavior, insulating the justices from the ordinary electoral pressures that properly govern the legislative and executive branches. The framers' design was that the bench would be the 'least dangerous branch' precisely because it commands neither the purse nor the sword — its only asset is the public's reasoned deference to its judgment.

That deference rests on an institutional reputation the justices themselves must cultivate and protect. When justices publicly attack one another's motives, competence, or integrity — beyond the honest disagreement expressed in opinions — they do not merely embarrass themselves. They perform the court's internal divisions for an audience of partisans who are already inclined to treat the bench as simply another arena of factional combat. I argued in Federalist No. 51 that each branch must have the means and the motive to resist encroachments by the others. But a court visibly at war with itself has already surrendered the dignity that makes resistance credible.

The structural danger is this: every public quarrel among the justices is ammunition for those in the political branches who would prefer a court they can discipline. Proposals to impose term limits, to expand the court's membership, or to strip its appellate jurisdiction are perennial precisely because they are constitutionally plausible. A court that maintains its collegial gravity gives those proposals little purchase with the public. A court that appears riven by ego and faction hands reformers — of any ideological stripe — the narrative they need. Whether such reforms would be wise is a separate question; the point is that the justices' own conduct determines how much political capital an opponent must spend to pursue them.

I will acknowledge what I cannot know from the lead alone: precisely which justices, in which forums, have said what about whom. I mark that detail as beyond what the National Review piece as summarized has confirmed. But the structural principle requires no such specifics. The written compact is clear on the judiciary's design. What the compact cannot supply is the institutional self-discipline that gives the design life. That must come from the justices themselves.

The question every constitutional arrangement must finally answer is not whether it looks right on paper but whether the human beings operating it will bear its weight. On that question, the framers were always frank: we built machinery against faction, but the machinery requires republican virtue to function. When the guardians of the compact become a faction among themselves, the balance does not hold on its own. It waits for someone with the will — and the ambition — to tip it.