The Supreme Court has recently been considered the most powerful part of the federal government, with the ultimate pronouncement on abortion, gun laws, climate policy, voting rights and more.
But the founders no intention for the court to have such a dominant role. They see the judiciary as just one branch of government. They have given Congress and the president, as well as state governments, various ways to test the power of the courts and even overturn the impact of rulings.
Two big examples emerged this summer, following the court’s decision to overturn the Roe v. Wade case. In Kansas, residents overwhelming vote this week to keep abortion rights as part of the state constitution. And in Congress, same-sex marriage advocates are trying to pass a bill to protect itworried that the court may soon also restrict the right to marry.
These developments offer a reminder of the limits of the Supreme Court’s power: Political progressives and moderates are worried about the current court – a combination of its belligerence and the relative youth of conservative members – there are many options to confront it.
Some of the options are quite radical, such as changing the size of the court or passing a law declaring any subject outside the limits of the Supreme Court’s consideration (both of which are, to put it bluntly, plain, happened in previous centuries). Other options are simpler. They concern the basic tools of democratic politics: winning public opinion and winning elections.
Larry Kramer, former dean of Stanford Law School, debate that many progressives have made the mistake of paying relatively little attention to this strategy in recent decades. Instead, they have relied on the courts to bring victories for civil rights and other policies. That tactic worked under the liberal Supreme Court of the 1950s and 1960s and even sometimes under the more conservative court in recent decades. But according to the current court, it will no longer work.
Anyway, the founders did not design the court to be the ultimate arbiter of American politics. At the state level, progressives are still likely to defend abortion rights, as long as they can convince enough voters – as happened in Kansas this week. At the federal level, Congress has more authority to challenge court decisions than many realize.
“If you want a better government, you have to be actively involved in creating it. And that you do through democratic politics if you want it to be a democracy,” Kramer recently spoke on Ezra Klein’s podcast. “You try and convince, and if you do, the country will go after you.”
267 to 157
The same-sex marriage bill is attractive because it is a rare instance of Congress recently acting as a check and balancer for the Supreme Court, just as the Founders envisioned it and the Constitution for. permission.
When a court overturns a particular law, Congress can often pass a new law, written differently, that achieves many of the same goals. Congress adopted this approach to civil rights beginning in the 1980s, including with the Lilly Ledbetter Fair Pay Act of 2009, making it easier for workers to sue for discrimination. salary judgment. Law was a clear response issued a Supreme Court ruling against Ledbetter.
More recently, however, Congress has become overly polarized and deadlocked in its response to court decisions. As a result, the courts tends to dominate federal policy, by default.
But after the court’s abortion decision in June contained language that appeared to threaten same-sex marriage rights, House Democrats were quick to propose a marriage bill that would incapacitate of any future court decision. Courts can still issue rulings allowing states to stop practicing same-sex marriage. But the House bill would require one state to recognize another state’s marriage. Two women or men who get married in California will still be legally married in South Carolina even if the country stops holding same-sex weddings.
At first, the House bill seemed likely to be a political exercise, intended to force Republicans in surrounding areas to cast a tough vote. Instead, the bill passed easily, 267 to 157, with all 220 Democrats and 47 Republicans voting yes.
In the Senate, which needs 60 votes to pass a vote, the bill’s prospects remain unclear. Currently, the bill has the support of all 50 Democratic-affiliated senators and four or five Republicans. My colleague Annie Karni said that Democratic leaders plan to hold a vote on the bill in the coming weeks.
No wonder: According to a recent Gallup poll, 71 percent of Americans support same-sex marriage.
Even if it doesn’t pass the Senate, the bill could prove consequential. It has set a precedent, and a similar bill seems likely to be on the legislative agenda any time Democrats take control of Congress. The House vote itself also has the potential to sway the Supreme Court by demonstrating that a decision to reverse same-sex marriage rights would not be in line with the views of many Republicans.
Outside of marriage
I realize that progressives still face obstacles in getting their goals through Congress. The Senate has an inherent inclination towards conservative, rural states. The house is gerrymandering (although the county this year not really for Republicans a big advantage). And the Supreme Court has made it easier for states to pass voting restrictions.
However, political change is rarely easy. Religious conservatives spent decades building a movement to change the country’s abortion laws and have endured many disappointments and setbacks along the way.
If progressives want to slow climate change, reduce economic and racial inequality, protect LGBT rights and more, the current Supreme Court has not rendered them powerless. If they can win more elections, the Constitution offers many ways to accomplish their goal.
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