Congressional Inaction is Forcing the Supreme Court into the Firing Line
This November’s midterm elections have become part of a disturbing trend; instead of elections being a strict battle over policy, they include a battle over the judiciary. In 2018, the confirmation of Brett Kavanaugh to the Supreme Court increased enthusiasm for Republicans, and a Supreme Court vacancy in 2016 rallied GOP voters to support then-candidate Donald Trump. Political focus on the nation’s judiciary during this election cycle is due to a string of recent landmark decisions from the nation’s highest court, which have reminded Americans of how powerful an institution the judiciary is.
These recent controversial court decisions are due in part to a coordinated effort by Republicans to maximize the number of conservative judges within the nation’s judicial system. During the Obama administration, Republicans paid particular attention to the ideological composition of the nation’s judiciary, blocking a number of Obama’s Court nominees. This effort culminated in the GOP’s refusal to act upon Obama’s nomination of now-Attorney General Merrick Garland to the Supreme Court following the death of Antonin Scalia. Once Republicans gained control of the White House and Senate in 2016, they immediately pounced at the opportunity to fill seats they blocked during the Obama administration, confirming new judges at a record-pace. Adding three justices to the Supreme Court, the Trump administration delivered the conservative supermajority that Republicans had long hoped for.
Republican focus on control of the judiciary did not develop in a vacuum. Instead, it is part of a larger story of Congressional inaction. For the past several decades, Congress has been passing fewer bills each session. Of the few bills that Congress does pass, an increasing proportion of them are ceremonial rather than substantive. For example, from the 107th Congress to the 111th Congress (2001-2010), 2,215 pieces of legislation were enacted, and about 26% of those bills were ceremonial. From the 112th to the 116th Congress (2011-2021), just 1,696 pieces of legislation were enacted, and about 33% of them were ceremonial. Congressional inaction has had a number of consequences, with much focus being drawn towards the growth of presidential power. Equally upsetting to the American political system has been the politicization of judicial power. Political actors, such as state attorneys general, understand that Congress is becoming increasingly ineffective as a legislative body, so they seek to achieve victories by using the nation’s courts.
The push for same-sex marriage rights is a perfect example of the Supreme Court handling an issue that Congress failed to address due its ineffectiveness. In 2015, the majority of states had legalized same-sex marriage, a clear sign to Congress that taking action to create a nationwide right to same-sex marriage would have been in line with the views of the American people. Instead of Congress taking action, political actors, such as the ACLU, worked to force the issue before the Supreme Court, which declared a constitutional right to same-sex marriage in its Obergefell decision by a slim margin. Now, the Obergefell decision is back in the spotlight as Justice Clarence Thomas wrote in his concurring opinion in Dobbs v. Jackson that the Supreme Court “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Had Congress acted before the Supreme Court, instead of now scrambling to codify same-sex marriage rights, Thomas’s calls to reconsider Obergefell would carry little weight.
In the course of acting on issues that Congress should have dealt with, the Supreme Court is facing questions about its legitimacy as an institution and increased calls for reform. Instead of Congress codifying the right to an abortion in the past 49 years, conservative states forced the issue before the Supreme Court. In Dobbs v. Jackson, the Court delivered a decision that has sent shockwaves throughout the nation and caused public trust in the Supreme Court to collapse. A Republican-molded Supreme Court is returning decisions that are at odds with public opinion, such as by limiting the power of the EPA to regulate emissions or blurring the separation of church and state. Increasingly unpopular, it now faces calls from Democrats to expand the Court and pack it with their preferred nominees, similar to Democrat efforts to reform the Court in the 1930s. The Supreme Court faces a difficult situation. They are forced to act because issues unaddressed by Congress are instead appearing on their docket, and when they do act, they are returning decisions in line with their judicial philosophies that are nonetheless unpopular with the public.
The Supreme Court is uniquely weak compared to the other two great powers in American politics. Constitutionally, Congress has the power of lawmaking and the president has the power of enforcement, while the Court is a check on the powers of both. However, the High Court is vulnerable to the whims of both entities. If the Court runs afoul of Congress and the President, they can restructure the Court to their liking as the Constitution fails to outline the Supreme Court in great detail. Therefore, the judiciary maintains its legitimacy and avoids restructuring by being perceived as a body above typical partisan politics that delivers impartial decisions. The Supreme Court has walked this fine line for decades, avoiding court packing and enabling themselves to perform their constitutional duty of checking the other two branches. The recent Democratic push to pack the Court would destroy its legitimacy, as Republicans would simply do the same if returned to power in the White House and Senate. No longer would the nation’s highest court be a body insulated from partisan disputes, it would instead be yet another battlefield in the fight between Republicans and Democrats.
In order to preserve the sanctity of the Supreme Court, Congress must take serious steps to regain its ability to be a productive deliberative body. Congress is not short of ideas on how to improve the country, but the Senate filibuster stands in the way of ambitious policies. With the current 50-50 divide in the Senate, amassing the 60 votes needed to end a filibuster is a nearly impossible goal. The filibuster has also seen increased use in the past two decades, blocking any real legislative action. As previously mentioned, Congress is now taking action to defend same-sex marriage rights after the Dobbs decision, but the Senate filibuster has forced Congress to postpone the issue till after the midterms in attempt to secure the necessary Republican votes to pass the bill. Instead of settling with inaction, Congress should instead dismantle the filibuster and act to protect the basic rights of the American people. Had Congress removed the filibuster prior to the Dobbs decision, Congress may have been able to codify reproductive rights and neutralize the impact from the Court’s decision. Ending the filibuster is being actively contemplated in the Senate, and taking action against it would create a more dynamic Congress, where both parties could more easily score legislative victories and lessen reliance on the Supreme Court to meet policy goals.
In a normal political environment, the focus of voters should be centered on what representative they want to elect to an efficient and ambitious Congress. Instead, voters are focused on the Supreme Court, which seems all-powerful in comparison to our lethargic and stagnant Congress. Bypassing Congress and politicizing the Supreme Court is creating a crisis of legitimacy which may very well destroy one of our nation’s most important institutions. The only way to save the judiciary as we know it is for Congress to step up and legislate by eliminating the filibuster and opening the pathway for real action by our nation’s elected representatives.