Chief Justice John Roberts shakes hands with President Donald Trump during first joint session address of his second term. Photo: REUTERS/Kevin Lamarque
All of the dysfunction in Congress is coming from decisions that the U.S. Supreme Court ushered in, and it is completely changing the face of American government, a legal scholar explained.
Writing for The Atlantic on Tuesday, Stanford Law School fellow Duncan Hosie said that there are two key rulings that have resulted in the downfall of Congress.
"These dynamics share a root cause: the partisan polarization that has reshaped American politics over the past four decades," wrote Hosie. "But the connection is deeper and more complex than that. Whereas polarization weakened Congress, it emboldened the Court to dismantle laws and, in the process, undermine Congress’s ability to make laws at all, reinforcing Congress’s sclerosis."
The first began during the "Newt Gingrich revolution," he argued, with "rising partisanship and institutional upheaval."
Sorting members into "distant ideological camps and normalizing scorched-earth tactics" led to absolutist politics and made bipartisan politics for the greater good rare. Instead, ideological battles were launched with Supreme Court nominees with a litmus tests for partisan purity over reasonable interpretations of the law. Even justices below the High Court have become partisan as "Republican appointees began consolidating its authority at Congress’s expense."
Under Chief Justice John Roberts, Hosie said, the Court has canceled "congressional constitutionalism." Laws passed such as the Voting Rights Act, the Affordable Care Act, the Family and Medical Leave Act and campaign finance regulations have all be undermined by the Roberts cCurt.
The latter took a hit with a collection of decisions, such as Citizens United (2010), that "dismantled Congress’s two most significant efforts to regulate private money in public elections, eroding the safeguards that protect elections as conduits of public opinion," Hosie wrote.
There's a chance one case this year could make such issues even worse. The Roberts Court "dismantling" key laws "has left Congress more detached from its electorate, diminishing its claim and role as a representative authority."
Deregulating campaign finance laws has turned politics into such a huge undertaking that lawmakers and candidate spend more time trying to raise money than they do making direct contact with voters, conducting legislative oversight or fostering bipartisanship, the legal scholar said.
"Empirical studies confirm that reliance on large donors depresses participation in time-intensive legislative activities — things such as bill sponsorship, floor debate and committee work," Hosie wrote. "It simultaneously redirects lawmakers’ attention toward courting high-net-worth donors and away from talking to people in their districts."
The second issue is gerrymandering. Partisan legislatures draw maps that make congressional districts more one-sided. It then ensures that members of Congress appeal to the most extreme factions of their electorate.
Hosie called the court's ruling in "Rucho v. Common Cause (2019) [the most] entrenched electoral distortion in American politics. The Court has since doubled down. Last month, Justice Samuel Alito defended Texas’s gerrymandered maps on the grounds that they reflected 'partisan advantage pure and simple' — an unabashed apologia for a practice destructive to democracy."
Drawing congressional maps to craft "safe seats" means the ideologues win. That can "marginalize moderate voices," he explained. It reduces any incentive for compromise and accountability.
These rulings have ultimately reduced the power of Congress and expanded that of the judiciary branch that was meant to be equal under the Constitution. "Substantively, it has redefined what the Constitution forbids, preemptively removing entire policy domains from democratic deliberation before voters and lawmakers can even weigh in," Hosie closed.
