Opinion: Biden’s committee to ‘reform’ the Supreme Court won’t solve the real problem in Washington

If Democrats gain control of the Senate – whether through the Georgia runoff or midterm – party leaders will be under pressure from their left wing to legislate an increase in the size of the Supreme Court.

“
Too little has been done by Congress to come up with legislative solutions that would balance competing interests on difficult and conflicting issues such as abortion, immigration policy and climate change.
“

The pressure will be particularly acute if more conservative court system overturns Joe Biden executive orders intended to reverse the policies of the Trump era. However, Biden seems reluctant to engage in judicial wrapping and instead pledged during his campaign to appoint a bipartite commission on judicial reform.

Congress paralyzed

The Congress is increasingly paralyzed in the face of even urgent national challenges. For example, despite millions of Americans permanently unemployed, threatened with homelessness and starving, it took about six months to pass even a modest stimulus bill that devotes too few resources to states and helping the unemployed.

Too little has been done by Congress to come up with legislative solutions that would balance competing interests on difficult and conflicting issues such as abortion, immigration policy and climate change.

Instead, indicate legislatures pass laws that reflect regional preferences that challenge Roe vs. Wade in the hope that a now more conservative Supreme Court will overturn this decision or limit its scope.

Participation of the United States in the Paris climate agreement is determined by executive orders that come and go according to the party that occupies the White House.

President Barack Obama’s executive actions in 2012 granted DACA temporary legal status to reside and work in the United States. For two years, he admitted that the president did not have the constitutional authority to implement such a measure without the approval of Congress but went ahead anyway. Then, the Supreme Court effectively legislated a solution by blocking President Donald Trump’s efforts to repeal Obama’s actions until a Democrat occupies the White House.

The four Liberal members joined by Chief Justice Roberts voted to postpone the issue, saying Trump provided inadequate rationale for his decision. It borders on the absurd that overturning unconstitutional presidential action, however popular it may be, which has been publicly recognized by its main architect as illegal, should require a lot of justification.

A main challenge is the only worry

The dysfunction of Congress has important roots in the growing trend of Americans to reside in like-minded communities and gerrymandering. Together, these ensure mostly safe red and blue districts, where people going to Congress are more determined in primaries than in general elections.

This sends ideologically committed people in Congress fearing opposition in the next round of primaries and reluctant to compromise. States and citizens have increasingly turned to the courts on divisive issues such as climate change, and it all ends in the Supreme Court.

Conservatives want jurists who will stick to the written texts of the statutes and constitutions and effectively thwart this strategy. The Liberals want jurists who will adopt broader interpretations when drafting new laws that they cannot pass through Congress. Increasingly, this latest trend is the trend since Warren’s court reorganized the relationship between church and state by banning prayer in school, Bible reading, etc.

Reform advocates often cite the UK, where an independent commission – not the ruling political party through the prime minister – selects members of its Supreme Court on the basis of merit. But in Britain parliamentary rule and party discipline ensure that when voters elect a government, it can deliver on what it promises.

Here, presidents often cannot deliver Congress, even when their own party controls it. If that weren’t true, Trump would have completed his border wall in two years, replaced the Affordable Care Act, and passed immigration reform.

Pass the ball

Creating a commission to select judges to make laws that Congress is too dysfunctional to pass will only shift the fight to deciding who should sit on the commission. Conservatives are reportedly pushing for appellate court judges and constitutional lawyers strict constructionists and liberals the opposite.

No committee will resolve the political polarization in Congress. Instead, recognizing the inherently political role that the courts have been assigned by the abdication of Congress, the best we can do is create a more honest arbiter – give each party an equal number of nominations. The president could then be required to alternate nominations by consulting the Democratic and Republican members of the Judicial Committee.

Peter Morici is an economist and professor emeritus of commerce at the University of Maryland, and a national columnist.