The pending political battle over the Supreme Court is Congress’ fault.
Congress has rendered itself almost completely irrelevant. The result is the political battles over the biggest issues of the day have all shifted to the courts.
The byproduct of congressional abdication is that special interests see a Supreme Court nomination as the ultimate political battle with far-reaching ramifications to their particular cause or party. Sadly nominations have become about politics and power instead of principles and policy.
The separate and distinct powers provided to each of the three branches of government detailed in the Constitution have been out of balance for many years.
For decades Congress has been abdicating its proper authority to the executive branch. Many question why senators and representatives from across the political spectrum would give away their power and legislative authority bestowed on them in the Constitution. The answer is simple — reelection.
Congress has been passing beautifully named bills filled with sweeping generalizations that bestow on executive branch agencies the power to write law, establish penalties and play judge, jury and executioner when violations occur. For members of Congress this enables them to point fingers at, and place blame on, the executive branch and agencies when their constituents are unhappy with burdensome rules or oppressive, overreaching regulations.
The executive branch is all too happy to take whatever power Congress is willing to bequeath. Presidents of both political parties have pushed the envelope in expanding executive power. Whether it is agencies that have become estates unto themselves or presidents governing by executive order the net results are the same — lawsuits. And lots of them.
Political parties and special interest groups rush to file lawsuits the moment the political winds shift. These cases then wind through the courts until ultimately landing at the Supreme Court.
Government branches, and far too many Americans, have begun to look at the Supreme Court as if it has some sort of superpower. Justices wear robes not capes for a reason. They are to judge and interpret not create and legislate. And most definitely, they are not to rush in to save the day or solve the nation’s problems.
Sadly, members of Congress regularly vote for legislation knowing the courts will likely have to fix it later. The executive branch likewise issues presidential edicts, executive orders and onerous regulations knowing it could take years for the problem to be challenged and unwound in the courts.
What would happen if judges judged and lawmakers made law? History gives us a pretty good indication. Justice George Sutherland, the only Utahn to ever occupy a seat on the Supreme Court, was out of the country giving a speech in England on Sept. 5, 1922 — on the morning of his nomination to the Supreme Court. Before the Senate adjourned at the end of that very day, senators had confirmed Sutherland by a unanimous voice vote. Such unanimity would be most welcomed.
It is time for Congress to reclaim its authority and use it wisely. It is time for the executive branch to restrain its power. It is time for both branches, and both political parties, to deescalate the politicization of the courts. It is time for the judiciary to return to calling balls and strikes in accordance with the laws of the land.
With the passing of liberal lion of the Supreme Court, Justice Ruth Bader Ginsburg, it is good for citizens to review what Ginsburg claimed was the key to her long-standing friendship with conservative lion Justice Antonine Scalia. She said, “We were different, yes, in our interpretation of written texts, yet one in our reverence for the Court and its place in our system of governance.”
Citizens should hold members of Congress and the presidency accountable for doing their jobs, rejecting partisan rhetoric and making decision based on reverence for our form of government and what is best for the country.
Portions of this editorial appeared in the Deseret News Sept. 25, 2018.