The Washington PostDemocracy Dies in Darkness

Supreme Court steps into a void left by congressional dysfunction

WASHINGTON, DC - JUNE 24: An abortion rights demonstrator holds a sign reading, “Abort the court” near the Supreme Court in Washington, D.C. on June 24, 2022. The court announced a ruling on a Mississippi abortion case overturning Roe v. Wade. (Eric Lee for The Washington Post)
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Rep. Jamie Raskin (D-Md.) paused for 10 seconds as he pondered whether the Supreme Court had simply become a more powerful branch of government than Congress.

Finally, the former constitutional law professor came to a verdict.

“The Supreme Court can act with far more unity and focus because of the 6-3 right-wing control over the institution,” Raskin said in an interview Friday.

The Democratic majority in the House is just a few seats, he said, and the Senate suffers from an “effective paralysis” because of its 50-50 deadlock and filibuster rules that require at least 60 votes to advance most legislation, creating a legislative stupor on many issues for which the judicial branch has seized power.

“In that sense, the Supreme Court has more power than Congress to act on the things it wants to act on,” he said.

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As Raskin finished talking, Democratic aides were setting up for what was supposed to be a valedictory rally on the House steps in advance of passing the most consequential gun violence legislation in almost 30 years.

Just a day before, the court had ruled against state laws that restricted rights to carry guns in public, a decision that will likely lead to more guns on the streets. Then Friday, less than three hours before the House passed the gun legislation, the court overturned nearly five decades of rights to an abortion.

“I wish I could say ‘good morning’ to all of you. But after the decision handed down by the Supreme Court yesterday, compounded by that one this morning, it’s a challenge,” House Speaker Nancy Pelosi (D-Calif.) said at the rally.

With those back-to-back rulings, the Supreme Court’s recently empowered conservative bloc demonstrated that, barring a return to a better functioning Congress, those justices will essentially serve as the legislative branch on some of the most pressing issues of the day.

That power shift came through in a statement from Sen. Susan Collins (R-Maine). A key swing vote on the confirmations of Justices Neil M. Gorsuch and Brett M. Kavanaugh, Collins accused them Friday of giving misleading answers to her about the importance of respecting previous court precedents during one-on-one meetings ahead of their 2017 and 2018 confirmations.

“They both were insistent on the importance of supporting long-standing precedents that the country has relied upon,” Collins said.

But Collins, who has introduced legislation to codify the elements of the 1973 Roe v. Wade decision, went no further than calling their private statements to her “inconsistent” with Friday’s ruling gutting Roe and another precedent that were the foundation of abortion rights.

Pelosi acknowledged there is no legislative plan to rebut the court’s ruling, other than trying to retain their House majority and grow the Senate majority large enough that Democrats will have enough votes to unilaterally change filibuster rules.

“There is a plan and that plan is to win the election, hopefully to get two more senators so that we can change the obstacles to passing laws,” she told reporters.

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Democrats have accused Senate Minority Leader Mitch McConnell (R-Ky.) of being happy with a dysfunctional Congress, particularly after the past six years in which he steered the Supreme Court to the right by blocking one Democratic nominee and securing confirmations of three GOP-nominated justices.

“The dysfunction is an absolute political strategy,” Raskin said.

On three hot-button issues ― abortion rights, gun control and new immigration laws, particularly for younger immigrants brought here as children ― Democrats have long held an edge in public polling but have never converted it into enough political success to have legislative majorities for action.

Attempts at reshaping immigration laws have hit dead ends for more than 15 years, as conservative voters have aggressively opposed any path to citizenship or even permanent legal status.

After some high-profile figures lost GOP primaries, Republicans have generally backed away from any compromise on the issue. Back in June 2020, with Congress hopelessly stuck on how to handle the status of millions of young undocumented immigrants, a 5-4 Supreme Court majority waded into the battle by declaring that the Trump administration did not properly follow procedures in an executive order trying to deport them.

The makeup of the court shifted to the right with the addition of Justice Amy Coney Barrett in late 2020, and its rulings on immigration this month have signaled a potential rightward ideological shift on the issue.

Sen. John Cornyn (R-Tex.) has been part of many failed efforts at negotiating both immigration-border legislation and efforts to curb gun violence.

After the Texas mass shooting that left 19 young students and two teachers dead, Cornyn sat down for another round of talks on gun violence with Sen. Chris Murphy (D-Conn.).

Murphy has long pushed for a federal law mandating background checks on all gun purchases, a proposal that has held steady with 90 percent approval, or higher, for almost a decade. But Republicans, again facing conservative voters who view gun rights as sacrosanct, backed away from each attempt.

This time two senators narrowed the focus, because they determined that passing any law — demonstrating some form of success, no matter how modest — might be more important than the substance of the proposals.

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“I think there are a lot of people that I’ve been talking, to over the past few weeks, who really wonder whether our institutions can work,” Cornyn said. “And I think this is even more fundamental than the issue at hand: demonstrating that the Senate as an institution, and Congress as an institution, can actually produce something that can work.”

This legislation expanded background checks for younger buyers of guns, sets up a system to encourage states to set up red-flag laws to keep guns out of the hands out of people determined to be a danger and funding to help fortify schools against active shooters.

Democrats deemed it sufficient to send to President Biden’s desk but struggled with how much praise to heap on this mostly modest bill.

“This is a giant step forward,” Pelosi told reporters Friday. “Maybe not so much a giant, but a strong step forward.”

McConnell, who rarely supports anything related to guns that is opposed by the National Rifle Association, told reporters Thursday that getting an “outcome” would also help his side politically.

“This is a sensible solution to the problem before us, which is school safety and mental health and, yes, I hope it will be viewed favorably by voters in the suburbs we need to regain,” he said.

Raskin remained proud of the overall bill but lamented the Supreme Court ruling one day before. The justices had taken a more significant action than lawmakers had, he reasoned, possibly creating more gun violence.

“Are more people going to die because of the Supreme Court decision than we’re able to save with our legislation? Probably,” he said. “It’s a macabre question to contemplate, but probably.”

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