Divided Supreme Court Makes Policy Decisions Because Congress Won’t

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The Supreme Court of the United States resembles a divided legislature.

Seven of the nine judges expressed their widely differing opinions in two recent COVID vaccination decisions. Only Chief Justice John Roberts and Justice Brett Kavanaugh, both conservatives, joined the majority in both cases, and they alone refrained from commenting.

Despite appearances, the central issue was not vaccination against COVID. The decisions focused on the role of the federal government and the court itself. They were political, but more on personal beliefs than party affiliation.

The court decides the meaning of the law by applying long-established rules of interpretation. Judges are influenced by their opinions in applying these rules. These views can go beyond partisan politics; they may be based on a broader conservative or liberal ideology.

Judges making “political” decisions are nothing new. John Marshall, the first and perhaps most influential Chief Justice, was in favor of a strong federal government. Between 1801 and 1835, his decisions always advocated this objective, aimed at influencing the political evolution of the young nation.

In the two recent court decisions, conservatives and liberals each expressed their political judgments. All agreed on the grave public health threat and high personal cost of COVID-19, but that was it.

In one case, six conservative justices interpreted the law narrowly, ruling that Congress had failed to give the Occupational Safety and Health Administration authority to require vaccinations in large corporations. They opposed an administrative agency wielding broad power without clear congressional approval.

Congress itself could have adopted such a mandate or given OSHA that explicit power. Indeed, the court found that Congress could have acted, but did not. The court has ruled in major cases, such as Roe v. Wade when Congress failed to act, but this time the majority did not fill the void.

The three liberal dissidents had no doubt that Congress had given OSHA the necessary authority. They concluded that the COVID crisis was so acute that the court could interpret the law to help stop the spread of the virus.

The second case produced a majority of all three Liberals, plus Roberts and Kavanaugh. A simple majority of five controls the court. They ruled that federal funding for hospitals gave the government the power to impose conditions, including a vaccination requirement for medical staff.

Conservative dissenters opposed a role for the federal government and found no authority for Congress to set such terms. Kavanaugh split from his fellow conservatives and immediately came under fierce attack from the right for his independence.

In effect, the conservative justices had turned against Marshall, the historic conservative who had promoted a strong federal government. Instead, they asserted that individual states have the power to fight the virus.

Behind its rulings, the court wrestled with whether Congress was doing its job. His debate over what Congress meant highlights the failings of the legislature, which is supposed to set policy. It is no mistake that his powers make up Article I of the Constitution.

In fact, Congress is not a co-equal branch; it is the first among equals. Article III vests the Supreme Court with judicial powers, but “with such exceptions and under such regulations as Congress shall establish”. It can also limit presidential powers.

When it fails to pass laws dealing with public matters, Congress defers to the president and the court, increasing their political power. When judges have to make major political decisions, the court’s neutral objectivity can suffer.

If people think it is just another political body, the authority of the court can be weakened. Roberts tried to maintain respect for the court as an impartial body that should stay out of politics. His positions in both cases could be aimed at revealing his sense of judicial impartiality.

Both decisions were “by the court” and unsigned. They didn’t technically end the cases, but left the final blows to the lower courts. The court is increasingly using these quick procedural decisions, known as the “shadow case,” to make important decisions. The chances of careful consideration between the judges are lost.

Media reported that the outcome of the decisions was to limit the scope of President Joe Biden’s vaccination policy, which could have political effects on his presidency. But he paid less attention to the implications of decisions that went beyond his political destiny or even vaccinations.

The persistent inability of Congress to solve problems by making tough decisions undermines the democratic system. A big part of the reason is the filibuster of the Senate, which stops bills by requiring 60 votes to consider them. Only a simple majority of senators is needed to approve lifetime appointments of new judges.

If the court increasingly serves as the federal legislature, then the main purpose of presidential and congressional elections may come down to choosing the people who choose the judges.

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