Port: 'Congress will fight to the death to maintain their membership in Congress'
This Supreme Court expects legislators to legislate. We need to stop carrying on as if that's a bad thing.
MINOT, N.D. — Responding to a recent column of mine, in which I defended recent Supreme Court rulings on abortion and environmental regulations on the idea that legislature and not courts should pass law, Steve Andrist, writing in the Tioga Tribune , suggested that the problem with the courts is partisanship.
He's not wrong. But he's also beside the point.
Yes, Republicans and Democrats have both made judicial appointments hyper-partisan.
In 2013 Senate Democrats, including former North Dakota Senator Heidi Heitkamp, voted to eliminate the filibuster for most judicial appointees, eliminating the need to find bipartisan support for nominees.
In 2016, Republican Senate Majority Leader Mitch McConnell, in the midst of a presidential election year, refused to take up President Barack Obama's nominee for the court.
In 2017, a Republican majority in the Senate eliminated the filibuster for Supreme Court appointments to clear the way for the first of disgraced former President Donald Trump's nominees.
In 2018, Democrats turned hearings considering Trump nominee Brett Kavanaugh into one of the most repulsive spectacles of gotcha partisanship I've seen in nearly two decades of writing about politics.
In 2022, left-wing activists have taken to harassing Republican-appointed justices at their homes and in their private lives.
All of this is a problem, as Andrist notes, but it's a side-effect of a deeper problem.
Congress doesn't govern anymore. Congress produces vague policy and relies on the courts to fill in the blanks. Appointments to the Supreme Court have become a super-heated, ultra-partisan exercise because the expectation is that the court, and not Congress, should legislate.
We've made the court into something it was never intended to be, and now the process through which we appoint people to the court is a departure from the far more pacific version of that process we've seen in the past.
Congressman Kelly Armstrong put his finger on it during a recent speech on the House floor addressing the latest partisan escalation in the war over the court, which is Democrats demanding an expansion of the court so that our current president, a Democrat, can pack it with liberal justices.
"James Madison said 'Congress would fight to the death to protect its Article One authority'," Armstrong told his colleagues. "Unfortunately, I think what we have seen is Congress will fight to the death to maintain their membership in Congress."
"The real problem is that Congress doesn't want to deal with the nitty-gritty," Armstrong continued. "We want to fundraise off top-line messages and vague legislative text. We write ambiguous laws that leave important details and major questions to unelected bureaucrats. The decisions of those unelected bureaucrats inevitably are left to be sorted out by the courts."
Instead of a food fight over the ideology of the court, Congress ought to just do its job, Armstrong argues.
"Our reaction should be to take back our Article One authority and to clearly articulate congressional intent," he said. "If we write detailed laws, judges will properly implement Congress's intent."
Anyone who is concerned about the judiciary — and those concerns are valid — should look past their feelings about abortion and environmental regulations and guns to see this shift in judicial philosophy at the court as a good thing.
The court has said that if the American people and their elected representatives want abortion to be legal, they should pass that law.
The court has said that if we want the EPA to have sweeping powers to regulate emissions, Congress should write a law to grant that authority.
The court has said that if legislators want to curtail access to guns, they're going to have to do it in keeping with the second amendment, or else change that amendment.
This court expects legislators to legislate. We need to stop carrying on as if that's a bad thing.