by Mike Berry, Senior Counsel • 3 minutes
Americans often think threats to freedom arrive dramatically—with riots in the streets, military coups, or cross-border invasions. While those external threats are certainly real and worrisome, liberty is also at risk from the inside. History teaches that we are more susceptible to subtle threats, like a cancer that slowly metastasizes until it is too late.
Consider Venezuela.
In 2004, then-President Hugo Chávez and his allies pushed through reforms that expanded the country’s Supreme Court from 20 justices to 32. The ruling coalition then filled the newly created seats with loyalists, effectively guaranteeing the Chávez regime complete control of the nation’s highest court. What followed should concern every American.
Over the next two decades, Venezuela’s judiciary ceased functioning as an independent entity. The court became increasingly committed to advancing the ruling party’s political objectives rather than the rule of law. Since 2004, the Venezuela Supreme Court has issued more than 45,000 decisions. Of those, none—not a single decision—has gone against the ruling party.
The result was not merely a constitutional crisis. It was the gradual suffocation of liberty itself.
The lesson is simple: when politicians can change the size of a court whenever they dislike its decisions, judges become politicians in robes and courts become instruments of political power.
Many Americans view court-packing as an abstract constitutional debate. It is not. And for people of faith, it is a direct threat to religious liberty.
Religious freedom ultimately depends on an independent judiciary. Legislatures can pass protections, and executives can issue promises, but when government officials decide to punish religious expression, exclude religious organizations from public life, or discriminate against the faithful, courts are often the last line of defense.
Every major religious-liberty victory in recent American history depended upon judges willing to stand against political pressure. Whether protecting churches from religious hostility, safeguarding conscience rights, defending religious schools against discrimination, or ensuring that people of faith are not forced to choose between their beliefs and participation in public life, independent courts have served as essential guardians of the First Amendment.
Imagine those same cases being decided by judges selected specifically because they would support the ruling party’s anti-religious liberty agenda.
That is precisely why court-packing is so dangerous. It changes the fundamental question before the judiciary. Instead of asking, “What does the Constitution require?” judges begin asking, “What outcome does the political coalition that empowered me prefer?”
Religious minorities are always among the first to suffer under such a system.
History demonstrates that governments rarely begin by targeting everyone. They start with unpopular groups, dissenters, and those whose convictions challenge prevailing political orthodoxies. Religious believers often fall into that category because faith traditions answer to a higher authority than the state.
An independent judiciary provides protection against that temptation. A captured judiciary enables it.
The Framers understood this danger well. Alexander Hamilton described the judiciary as the “least dangerous” branch because it possessed neither the power of the purse nor the sword. Its legitimacy depended entirely upon public confidence that judges would apply the law rather than serve political masters.
Court-packing destroys that confidence.
The issue is not whether one agrees with a particular Supreme Court decision. Americans of good faith will continue to disagree passionately about constitutional interpretation. The issue is whether the rules of the game remain fixed even when outcomes are disappointing.
A nation committed to self-government accepts electoral losses and seeks change through persuasion. A nation tempted by authoritarianism changes institutions until it can no longer lose.
Americans should pay attention because constitutional liberty is not self-executing. It depends upon institutions strong enough to resist political pressure and principled enough to protect unpopular rights.
Religious liberty especially requires such protection. The freedom to worship, teach, evangelize, educate children according to one’s faith, and live consistently with deeply held convictions cannot survive if courts become extensions of political power.
If Venezuela teaches us anything, it is that freedom is rarely lost all at once. It is lost when independent institutions are transformed into partisan instruments and citizens convince themselves that constitutional safeguards are obstacles rather than protections.
Court-packing may sound like a technical reform. In reality, it is one of the quickest ways to undermine the rule of law and place every constitutional liberty—including religious liberty—at risk.
Once the courts belong to the government, freedom belongs to the government, too.
