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In our opinion: When tweets get fired at the Supreme Court, blame Congress

Supreme Court Justice Sonia Sotomayor speaks during a panel discussion celebrating Sandra Day O’Connor, the first woman to be a Supreme Court Justice, Wednesday Sept. 25, 2019, at the Library of Congress in Washington.
Jacquelyn Martin, Associated Press

The Supreme Court is once again swimming in the political swamp of Washington after a critique from Justice Sonia Sotomayor toward her fellow bench members reached the eyes and ears of the White House. The president shot back, pushing the court closer to the cliff of partiality toward which it has been inching for some time.

Disagreements between the branches of government are to be expected. Partisan battles in full view of the public, however, are not the way this republic ought to run.

In a dissenting opinion on a case regarding homeland security, Sotomayor criticized the administration’s reliance on the court to uphold executive orders: “Claiming one emergency after another, the government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited court resources in each. And with each successive application, of course, its cries of urgency ring increasingly hollow.”

President Trump fired back from half a world away in India, tweeting that Sotomayor and her colleague, Justice Ruth Bader Ginsberg, should have to recuse themselves from cases involving the administration because of their negative bias toward the president.

“Trying to ‘shame’ some into voting her way? She never criticized Justice Ginsberg when she called me a ‘faker’. Both should recuse themselves on all Trump, or Trump related, matters!” he wrote.

The founders established, and both political parties profess to concur, that the Supreme Court should be an unbiased, uncompromised and uninhibited arbiter of the law and the Constitution. Sadly, the root cause of the politicized court falls squarely on the shoulders of members of Congress.

Members of both the House and Senate discovered years ago it was easier to get reelected and raise money if their actions as lawmakers were less transparent. They also discovered that by ceding their lawmaking authority to the executive branch, they would be free from real accountability during their campaigns.

They continue to give power to the executive branch on a wide array of issues from budgets and national defense to immigration, regulation and declarations of war. When Congress abdicates its power, the executive branch (regardless of political party) will swoop in and act.

Executive orders rule the day in such an environment, but they lack the staying power of legislation forged by the debate held in the wells of congressional chambers. Their legality is challenged before the ink is dry, leaving a country governed by litigation, not lawmakers.

Thus, the Supreme Court has necessarily expanded its authority to accommodate the failings of Congress, surely surpassing its mandate as registered in a few small paragraphs in Article III of the Constitution.

The effect is likely injurious to the institution. An analysis done by the Kellogg School of Management at Northwestern University found that, when facing a pivotal vote — such as being the swing voter in a high-profile case — “liberal justices are more likely to vote liberally while conservatives are more likely to vote conservatively, compared to when those same judges cast a nonpivotal vote.”

The report concludes, “Justices vote differently when they realize that their vote really matters.”

The more Congress gives away, the more those votes will continue to matter. That was hardly the intention of the framers. Congress has the duty to take back what belongs to it and pass the laws and reforms the country needs, not the ones it wants to have argued in front of the bench.