Conventional wisdom suggests that the Supreme Court, like the country, is deeply divided along partisan and ideological lines. But this ignores the recent historic streak of unanimous decisions and the fact that liberal and conservative justices often do not vote as a bloc.
Critics of the court tend to respond to these uncomfortable realities by saying something like: Sure, but on the contrary. big In these cases, the culturally divisive conservatives form the majority and liberals the dissident minority.
Obviously, this is true sometimes. The Dobbs decision, which overturned Roe v. Wade, is a paradigmatic example. While I think Dobbs was right on the merits, it was also an important and polarizing ruling ideologically.
I'm happy to admit it, but why can't critics admit otherwise? When the court doesn't rule along ideological lines in important cases, it simply stops calling them important. As legal analyst Sarah Isgur (my Dispatch colleague) and economist Dean Jens recently put it political, “If one defines 'important' as the most politically divisive, then it becomes circular.” Which cases are divisive? The important ones. What cases are important? The divisive ones.
Last year, the court took up a case brought by anti-abortion doctors seeking to overturn the Food and Drug Administration's loosening of restrictions on the abortion drug mifepristone. In the wake of Dobbs, many understandably thought the case was important and divisive.
However, last week the Supreme Court ruled 9-0 in favor of the pro-choice position. If you listened closely, you could almost hear a crowd of pro-choice critics of the courts whisper, “It doesn't matter.”
Gun rights are another obvious example of partisan polarization. And last week, the Supreme Court issued a decision on the issue along the feared conservative-liberal axis. The six Republican-appointed justices voted to overturn the ban on bump-fire weapons, which for all practical purposes turns legal semi-automatic weapons into machine-gun-like automatic weapons that have been illegal for 100 years.
The ban on booster stocks was imposed by the Bureau of Alcohol, Tobacco, Firearms and Explosives under then-President Trump in the wake of the monstrous 2017 mass shooting in Las Vegas. So supposedly partisan Republican judges struck down a Republican administration's reinterpretation of the law, while Democratic appointees voted to keep it. In that sense, it was another example of a decision that doesn't fit neatly into the conventional plot.
Still, the court's liberal critics immediately denounced the originalist fanaticism of the conservative majority, while right-wingers celebrated a “great victory” for the Second Amendment, in the words of the Texas Bar. General Ken Paxton. But the case had little to do with the Second Amendment.
Rather, the court correctly held that the Trump administration could not unilaterally rewrite the established meaning of a statute banning machine guns to include booster stocks. If Trump is re-elected, you can imagine that many liberals will suddenly look more favorably on the idea that presidents cannot unilaterally rewrite the law.
Justice Samuel A. Alito Jr.'s agreement with the majority opinion gets to the heart of the problem. Referring to the Las Vegas shooting, Alito wrote that “an event that highlights the need to change a law does not in itself change the meaning of the law.
“There is a simple remedy for the unequal treatment of stocks and machine guns. Congress can change the law, and perhaps would have done so already if the ATF had maintained its previous interpretation. Now that the situation is clear, Congress can act.”
What Alito means is that Congress is not doing its job. The president is supposed to faithfully execute the law (hence the “executive branch”) and Congress, the legislative branch, is supposed to write the law. Both parties have colluded for decades to ignore this basic division of labor.
When the Trump administration banned emergency actions, it was responding to public pressure. But it also protected Republican lawmakers from being forced to take a tough vote in response to that public pressure.
Whether it's forgiving student loans, banning enforcement actions, controlling the border or setting trade policies, Congress doesn't want the responsibility – or accountability – that comes with being a legislature. So its members let the White House and the courts do their jobs for them, relishing the opportunity to complain when they get it wrong or take credit when they get it right. This dependence on other powers increases the risks of presidential elections and judicial confirmations.
Yes, polarization is part of the reason for Congress' dysfunction. But congressional dysfunction also drives polarization.
