The Justices of Last Resort

Congress can't act, and the presidency is up against its limits—leaving only the Supreme Court to step in.

Andrew Kelly / Reuters

Even though their approval rating already rivals that of Game of Thrones’ Ramsay Bolton, it has been a particularly embarrassing week for members of Congress. Just days after a 29-year-old shooter slaughtered 49 people at a nightclub in Orlando, the upper chamber of the nation’s legislative body—where deliberation and reason are presumed to lead the day—failed to advance any of the four proposals intended on making it harder (however incrementally) for terrorists to buy the weapons they use for mass destruction. (The chamber is still deliberating a modest compromise proposal.)

Because the weapons in question are assault rifles, the legislation became snarled in political tripwire, set mostly by the NRA. A new CNN/ORC poll released this week shows public support for similar gun-control measures is so broad that it’s nearly unanimous:

…Support for specific gun control measures was very strong, with 92% saying they wanted expanded background checks, 87% supporting a ban for felons or people with mental health problems and 85% saying they would ban people on federal watchlists from buying guns.

Most of the resistance—though not all—came from Republican senators, and even they were at odds with their constituents:

Among Republicans, that number is even higher -- 90% say they favor preventing people on the terror watch list or "no fly" list from buying a gun. That number is at 85% for Democrats.

Many, including those in the executive branch, feel the legislative branch has failed the country.

Instead, the most meaningful gun-safety reform of the last several years took place in a chamber 279 feet away, in a body not constitutionally designated with legislative affairs, but increasingly and nonetheless tasked with addressing them: the United States Supreme Court. On Monday, the Court refused to hear a claim that Americans have a constitutionally-protected right to own a semi-automatic weapon. In so doing, the judicial branch effectively held up state bans on assault weapons in New York and Connecticut. It was not a national solution, but the action nonetheless represented a significant advance, something the U.S. Congress has proven itself incapable of achieving.

In the next several days, the Court will again school the other branches of government, when it rules on U.S. vs Texas, where it will either bless or strike down president Obama’s executive actions on immigration—executive branch decisions driven in large part by legislative branch inaction.

Once again, the Court is being asked to referee a dispute that should really be handled by one (or both) of the other branches of government, like a neighbor called in to settle a fight between two warring spouses. But this is the new model of American governance: Politics has become so poisonous and treacherous that it has incapacitated two of the three branches of government. And the only one left to pick up the slack —which is to say, advance major changes relating to healthcare, equal rights, climate change and immigration—is an unelected body of five men and three women (at present) serving lifetime tenures at their leisure.

According to Norman Ornstein, a resident scholar at the American Enterprise Institute and a contributing writer for The Atlantic, “This problem has been in the works for a long time. Even before we had this level of dysfunction, Congress was passing the buck and pointing fingers. They’d pass vague pieces of legislation and leave the details to courts.”

But today, Ornstein argues, the problem of dysfunction has magnified: a Frankenstein built in the lab, running amok in the streets.

If the rise of a furious and unmanageable political force was not already cause for Americans to be concerned about the state of affairs, this week is showing the country that something is very, very wrong with its democracy: The courts are governing. That’s not what they were supposed to do.

So is it any surprise that the opinions issuing forth from the bench are so emotional? These justices effectively and desperately want to explain their worldview, occupying majority/minority leadership roles that happen to be right in the crosshairs of heated political debate. The late Justice Antonin Scalia was known for his florid dissents, especially in the wake of decisions supporting gay marriage and the Affordable Care Act; on Monday, Justice Sonia Sotomayor penned a charged dissent on racial injustice that quoted Michele Alexander and Ta-Nehisi Coates.

Where, exactly, do we go from here? There’s occasional saber-rattling about limiting the power of the judiciary, with measures like term limits, but their downsides are considerable, to say nothing of their political impossibility. More realistically: Who would do the hard work of governing if the courts were curtailed in their ability to respond? What body would rightly hold itself accountable to the American public in the way that the justices lately have, however flawed their execution? Congress, riven by internecine conservative battles, has proved an embarrassment; the executive branch has shown itself to be elastic, but is not a monarchy. It’s shameful and distressing that one of the world’s great democracies has found itself in such peril. But perhaps powerlessness will be a catalyst, a wake-up call. Nine robed justices, after all, are no substitute for a functioning and robust democracy.