Blame Congress for Politicizing the Court

When lawmakers hand power to bureaucrats, the people expect judges to act as superlegislators.

 

U.S. Supreme Court nominee Brett Kavanaugh at his confirmation hearing on Capitol Hill, Sep. 5.
U.S. Supreme Court nominee Brett Kavanaugh at his confirmation hearing on Capitol Hill, Sep. 5. PHOTO: CHRIS WATTIE/REUTERS

Brett Kavanaugh has been accused of hating women, hating children, hating clean air, wanting dirty water. He’s been declared an existential threat to the nation. Alumni of Yale Law School, incensed that faculty members at his alma mater praised his selection, wrote a public letter to the school saying: “People will die if Brett Kavanaugh is confirmed.”

It’s predictable now that every Supreme Court confirmation hearing will be a politicized circus. This is because Americans have accepted a bad new theory about how the three branches of government should work—and in particular about how the judiciary operates.

In the U.S. system, the legislative branch is supposed to be the center of politics. Why isn’t it? For the past century, more legislative authority has been delegated to the executive branch every year. Both parties do it. The legislature is weak, and most people here in Congress want their jobs more than they want to do legislative work. So they punt most of the work to the next branch.

The consequence of this transfer of power is that people yearn for a place where politics can actually be done. When we don’t do a lot of big political debating here in Congress, we transfer it to the Supreme Court. And that’s why the court is increasingly a substitute political battleground. We badly need to restore the proper duties and the balance of power to our constitutional system.

If there are lots of protests in front of the Supreme Court, that’s an indication that the republic isn’t healthy. People should be protesting in front of this body instead. The legislature is designed to be controversial, noisy, sometimes even rowdy—because making laws means we have to hash out matters about which we don’t all agree.

How did the legislature decide to give away its power? We’ve been doing it for a long time. Over the course of the past century, especially since the 1930s and ramping up since the 1960s, the legislative branch has kicked a lot of its responsibility to alphabet-soup bureaucracies. These are the places where most actual policy-making—in a way, lawmaking—happens now.

What we mostly do around this body is not pass laws but give permission to bureaucracy X, Y or Z to make lawlike regulations. We write giant pieces of legislation that people haven’t read, filled with terms that are undefined, and we say the secretary or administrator of such-and-such shall promulgate rules that do the rest of our jobs. That’s why there are so many fights about the executive branch and the judiciary—because Congress rarely finishes its work.

There are rational arguments one could make for this new system. Congress can’t manage all the nitty-gritty details of modern government, and this system tries to give power and control to experts in technical fields, about which most of us in Congress don’t know much of anything.

But the real reason this institution punts most of its power to executive-branch agencies is because it is a convenient way to avoid responsibility for controversial and unpopular decisions. If your biggest long-term priority is your own re-election, then giving away your power is a pretty good strategy.

But when Congress gives power to an unaccountable fourth branch of government, the people are cut out of the process. Nobody in Nebraska, Minnesota or Delaware elected the deputy assistant administrator of plant quarantine at the U.S. Department of Agriculture. If that person does something that makes Nebraskans’ lives difficult, where do they go to protest? How do they navigate the complexity of this town to do executive-agency lobbying? They can’t.

They don’t have any ability to speak out or to fire people through an election. When the administrative state grows—when there is this fourth branch of government—it becomes harder for the concerns of citizens to be represented and articulated by officials who answer to the people. The Supreme Court becomes a substitute political battleground. It’s only nine people. You can know them; you can demonize them; you can try to make them messiahs. Because people can’t navigate their way through the bureaucracy, they turn to the Supreme Court looking for politics. They look to nine justices to be superlegislators, to right the wrongs from other places in the process.

When people talk about wanting “empathy” from the justices, that’s what they’re talking about—trying to make the justices do something Congress refuses to do as it constantly abdicates its responsibility. The hyperventilating that we see in this process shows us a system that is wildly out of whack.

The solution is not to try to find judges who will be policy makers or to turn the Supreme Court into an election battle. The solution is to restore a proper constitutional order with the balance of powers. We need a Congress that writes laws, then stands before the people and faces the consequences. We need an executive branch that has a humble view of its job as enforcing the law, not trying to write laws in Congress’s absence. And we need a judiciary that applies written laws to facts in cases that are actually before it.

This is the elegant, fair process the Founders created. It’s a process in which the people who are elected can be fired, because the men and women who serve America by wearing black robes are insulated from politics. This is why we talk about an independent judiciary. This is why we shouldn’t talk about Republican and Democratic judges and justices. This is why we say justice is blind. This is why we give judges lifetime tenure.

And this is why this is the last job interview Judge Kavanaugh will ever have. Because he’s going to a job in which he’s not supposed to be a superlegislator.

Mr. Sasse, a Nebraska Republican, is a member of the Senate Judiciary Committee. This is adapted from his opening statement at Judge Kavanaugh’s confirmation hearings.

Appeared in the September 6, 2018, print edition.

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