Amid D.C. Gridlock, Has Supreme Court Stepped In?

Amid D.C. Gridlock, Has Supreme Court Stepped In?

By Alexis Simendinger - July 1, 2013

Woven into the Supreme Court’s spirited legal opinions about marriage equality and voting rights last week was the germ of an idea other powerbrokers raised in their own ways simultaneously: When Congress and the executive branch are at loggerheads, is there a perceived invitation for the court -- and other institutions with clout -- to march on in?

Put another way, if branches of government with responsibility to make and improve laws, direct economic policy, and safeguard Americans’ rights fail to settle their political differences, are others -- including those on the nation’s highest court -- encouraged to act as “conscious molders of policy,” to quote the late Harvard University government professor Robert McCloskey?

In his dissent to the majority’s decision to overturn the Defense of Marriage Act, conservative Justice Antonin Scalia said the court involved itself in a political battle that he thought better left to Congress and the president. “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America,” he wrote.

In 1996, Congress passed legislation prohibiting the federal recognition of same-sex marriage, and President Clinton signed it. Since then, 13 states and the District of Columbia have moved to recognize same-sex marriage. But advocates for gay marriage are still shy of the votes needed in the Senate and House to repeal the 17-year-old law, even as President Obama’s Justice Department declined to enforce it. In that climate, the Supreme Court ruled last week that same-sex spouses who are legally married in a state may receive federal benefits. Separately, the court also cleared the way for same-sex marriages in California to resume, and the 9th Circuit Court of Appeals quickly lifted its stay to allow gay marriages to proceed there.

Suggested within Scalia’s disagreement with five of his fellow justices was a question about whether an atmosphere of seemingly chronic impasse between Congress and the president served as an invitation to political activism by the court.

“All nine justices are judicial activists of different sorts,” said Washington writer and Brookings Institution non-resident fellow Stuart Taylor. “I don’t think they need a void.”

In the same atmosphere in which the court reached its verdicts, the executive and legislative branches, the states, and the independent Federal Reserve have all chafed at various political disputes and blockades, opting to stretch their powers to get things done when Washington has appeared tangled in feuds.

For his part, President Obama adopted a slogan after the 2010 elections to describe his frustrations with Congress: “We can’t wait.” Choosing action -- any form of action -- to appeal to like-minded progressives, he announced his intent last week to instruct the Environmental Protection Agency to curb greenhouse gases with a regulation designed to cut carbon emitted from new and existing power plants beginning in 2015. Obama’s decision to use his executive heft is likely to wend its way to court, while Congress shows no signs of wanting to revisit climate change to clarify the situation with a new law.

By the end of the week, while flying from Senegal to South Africa, Obama hinted to reporters he might find ways to dodge congressional opposition to new spending for foreign aid by working “smarter” through existing appropriations to get U.S. assistance to Africa.

To mediate a recurring dispute between the executive and the legislative branches, the Supreme Court announced it will decide next term if Obama was so determined to sidestep GOP Senate opponents that he erred in appointing his picks to federal jobs when the Senate should have had the final say.

And if those examples aren’t enough, there is always discord between the chambers in Congress. Immigration reform advocates last week -- worried the House won’t follow the Senate’s lead to create a new path to citizenship for millions of undocumented people living here -- hunted for an end-run legislative play (including a long-shot discharge petition that hinges on 218 votes) that might force the House to debate the Senate bill, which passed with a 68-32 super-majority. The House GOP leadership says it is immovable on the subject -- that the chamber will take up its own bills; will proceed under regular committee order; and will follow its own timetable.

The week also put the Federal Reserve and its extraordinary stimulus policy known as quantitative easing back in the spotlight. Financial markets got the vapors when the central bank reiterated its intent to wean the U.S. economy off the easy-money sustenance the bank launched as a life preserver during the financial crisis.

International Monetary Fund Managing Director Christine Lagarde, a critic of Congress’s automatic deficit-cutting during a wobbly recovery, on Wednesday hailed as effective the “unconventional monetary policies” devised by the Fed, especially during a period when Obama and congressional Republicans clashed over default, fiscal policy expiration dates, a possible government shutdown, and the wisdom of erasing $85 billion in federal spending across the board.

“I think there’s a big difference between what is being done in Washington on the Hill and what is being legislated, and what the relationship is between the executive and the legislative, which certainly could be improved, and what’s going on with the American economy,” Lagarde said on MSNBC when asked to comment on American leadership.

Economists continue to debate whether the Federal Reserve, led by Chairman Ben Bernanke, helped mold economic policy with rounds of QE, or contorted it.

Asked if they thought the Supreme Court thrust itself or was drawn into cases as a result of Washington’s political rifts or inaction, some legal experts thought that notion to be a leap. Some argued that “inaction” and “gridlock” do not properly describe Washington’s track record since divided government followed the 2010 election.

Whether it was the legislative branch’s narrow passage of the Patient Protection and Affordable Care Act, or the administration’s decision not to enforce the Defense of Marriage Act, the two branches acted and the Supreme Court reacted.

“I would go easy on drawing that inference,” agreed Peter Schuck, professor of law at Yale University. “The court speaks in its own language, and it’s a very specialized language. It’s impossible to know what’s motivating them.”

In studies of the Supreme Court, a modern justice is said to be torn between an imperial impulse to wield a scepter and the instinct to remain a “lion under the throne.”

“I think it’s pretty clearly an activist court,” Alan Morrison, associate dean for public interest and public service law at George Washington University, said in an interview. “By activist, I define it to mean: They’re taking actions and issuing decisions that override the will of the elected representatives. … My own sense is that the court is not being asked to step in and deal with gridlock, at least in many cases.”

And Morrison, who co-founded the Public Citizen Litigation Group, said he did not believe Congress was deliberately tossing hot potatoes to the court. “The legislative process doesn’t allow [Congress] to think through, in every respect, all of the ramifications,” he said. The health care law, for example, which the court upheld last summer, was not perfect policy, because the measure had to clear a narrowly divided Senate. A conference committee, which could have ironed out wrinkles before final passage, was not an option, Morrison added.

Santa Clara University Law Professor Margaret Russell said she did not view the court as overstepping its boundaries so much as acting out its “strong divergences of views … on particular issues among the branches.”

She pointed out that in the marriage equality case, Scalia -- in the minority -- argued that where the executive branch failed to defend a law (the Defense of Marriage Act) and Congress failed to repeal the law, the court should have acted with restraint, and allowed the political system to decide. But in the voting rights decision, Scalia joined Chief Justice John Roberts, Samuel Alito, Clarence Thomas and Anthony Kennedy to erase a key anti-discrimination formula determining which states had to seek federal “pre-clearance” before changing voting requirements. They decided the formula was “based on decades-old data and eradicated practices.”

Thus the court, clearly not motivated by judicial restraint, challenged Congress to come up with contemporary data if it sought to replace the guts of the law. In a period of sharply divided government, many analysts said they do not expect Congress to tackle the Voting Rights Act anytime soon. Lawmakers last reauthorized it in 2006 (leaving the old formula as is), and the Justice Department prominently enforced the law during the 2012 election cycle.

If there is a prevailing view that this Supreme Court is molding American policy regardless of whether Congress and the executive are at loggerheads, do Washington’s current frictions have an impact on the court? The answer, said Gerald Rosenberg, a University of Chicago Law School lecturer and political scientist, is yes.

Historical analyses suggest that “when Congress is gridlocked, the court has more room to maneuver, and it’s less likely the Congress will retaliate against the court,” he said. When Congress had sufficient majorities to legislate, thus creating a check, history shows the court has been more constrained.

Rosenberg cited the voting rights decision last week as an example of the court seeing room to maneuver. “The court knew it could get away with this decision,” he told RCP.

That the court responds to American political life is without question, Rosenberg continued. He referenced McCloskey’s 1960 book, “The American Supreme Court,” new editions of which he regularly assigns to his students.

“In truth, the Supreme Court has seldom, if ever, flatly and for very long resisted a really unmistakable wave of public sentiment. It has worked with the premise that constitutional law, like politics itself, is a science of the possible,” Professor McCloskey wrote. “[T]he court learned to be a political institution and to behave accordingly.”

Russell views the nine justices as “political with a small 'p’.” The court is “a political body,” she said, but “not partisan,” at least not in the simplistic way Americans perceive their politicians to be.

The Supreme Court’s sensitivities to American political life have attracted wry commentary for more than a century, Schuck added. To make that point, he quoted from a 1901 cartoon in which Chicago commentator and humorist Finley Peter Dunne used his comic barroom character Mr. Dooley to remark:

"No matther whether th’ constitution follows th’ flag or not, th’ Supreme Coort follows th’ election returns.”

Alexis Simendinger covers the White House for RealClearPolitics. She can be reached at Follow her on Twitter @ASimendinger.

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