The Supreme Court’s attitude toward congressional investigations also stands in contrast to its deference toward other sorts of government investigations. As Justice Ruth Bader Ginsburg commented during oral argument in Mazars, if a police officer “stops a car and gives the reason that the car went through a stop sign, we don’t allow an investigation into what the [officer’s] subjective motive really was.” The Court, she reasoned, has no business “distrusting Congress more than the cop on the beat.”
Most of all, the Supreme Court has taken a charitable view of the presidency alongside its suspicious view of Congress. Compare the cases we describe above to Trump v. Hawaii, in 2017. As Justice Sonia Sotomayor wrote in dissent to the Court’s majority opinion overturning an injunction against Trump’s eight-country travel ban, the record painted a “harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.” But a majority of the Court refused to consider the motives underlying the president’s actions, even as the Court routinely scrutinizes congressional motives when Congress tries to exercise powers that were long taken for granted.
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What can Congress do in the face of this judicial distrust? The answer differs depending on whether Congress is acting in its investigatory or legislative capacity.
In its investigatory role, the Georgetown University law professor Josh Chafetz has persuasively argued, Congress must use tools at its own disposal rather than trust the courts to back it up in its fights with the executive. Congress can condition funding on certain disclosures, write transparency requirements into legislation, or even threaten to hold members of the executive branch in contempt. The appropriate tool will vary based on the circumstances, but Congress should not rely on the courts as a partner in holding the executive branch accountable.
In its legislative capacity, Congress should be prepared for courts to read its handiwork in a maximally critical way. Practically speaking, Congress must do its best to safeguard statutes in the face of a skeptical Supreme Court. This includes building exhaustive records supporting its legislative efforts and ensuring that its approaches to solving public-policy problems are far from the boundary of constitutionality. Even heeding all of this advice might at times not be enough, as Shelby County proved.
As important as judicial distrust of Congress has been in recent years, it might become even more potent in the years ahead. The biggest challenges we face—climate change, immigration, criminal justice—call for bold legislative solutions. The difficulty of legislating means that these solutions won’t come easily. A Supreme Court that distrusts Congress as deeply as this one has in recent years poses one more obstacle to the policy changes that we so sorely need. If judicial distrust hems in Congress’s ability to craft creative solutions to national problems, we will all be worse off for it.