In a Sutherland Institute Congressional Series event on August 15, Sen. Mike Lee noted that recent criticisms of the U.S. Supreme Court are based on a misunderstanding of the court’s role. These efforts, he said, try to “politicize the court” rather than recognize the independent status of the court.

What is that role?

Lee pointed to the rule of law as the key to understanding the court’s role. That phrase summarizes a cluster of values: openness, stability, clarity, consistency. Its antithesis is arbitrariness and inconsistency. The principle applies in both the making of law and in its enforcement.

The rule of law is protected by a number of features of our constitutional system, but among the most important of these are a written constitution and separation of powers. Lee focused on the second in his remarks, explaining that once justices are confirmed, they “cease to be part of the political world.” This is a crucial distinction from the other branches, which are intended to be representative and thus accountable to constituents through consistent elections.

Like Homer’s Ulysses, the justices are purposely “tied to the mast” so as not to respond to political pressures or outside influences.

If the justices are not responding to political considerations, what are they supposed to be doing? They are intended to ensure that the Constitution and laws are applied to specific disputes. In a sense, they are bound by the written laws.

This means that the Supreme Court’s primary responsibility is to ensure that in disputes over the meaning of laws in particular contexts, the meaning of the law trumps other considerations. This might be challenging for a justice at times, since the laws being applied may lead to results that the justice would not choose or that might be deeply unpopular.

This is particularly true in constitutional cases when the written law in question had been promulgated long ago and might seem to be at odds with modern goals and sensibilities. When the written law prevents (or at least does not deliver) what many consider expedient, justices can be tempted to align their role with that of the representative branches by reading the constitutional (or other) text expansively – so as to accomplish specific goals even when they are not consistent with that text.

The key to resisting this temptation is to remember that the limitations inherent in a written constitution are a feature, not a bug. The Constitution establishes a representative form of government to allow a great degree of responsiveness to popular opinion, but that very responsiveness could lead to incursions on other important considerations like the rights of minorities or limitations on government power.

This is where our written Constitution becomes most valuable. By explicitly curbing what the president and Congress can do, it ensures that popular government will not be allowed to create collateral damage. This requires, of course, that the branch of government tasked with ensuring that these limitations are respected does so conscientiously.

If, instead, the Supreme Court is drawn into different pursuits as a result of politicization or partisan division, its most important responsibility will be left undone.

With this purpose in mind, it seems clear that the proposed changes to the court that Lee mentioned, such as increasing the number of the justices, are only likely to undermine the court’s constitutional role by politicizing its work.