Published March 07, 2013
With Capitol Hill mired in gridlock and lawmakers governing from one crisis to the next, there's a growing focus on the Supreme Court's increasingly powerful role in determining the law of the land.
Former Deputy Assistant Attorney General Thomas H. Dupree Jr. says when lawmakers fail to act, other branches of the government will.
"You look at the Voting Rights Act, you look at our broken immigration system, and when Congress isn't taking steps to fix the law, then they're leaving citizens no other choice than to raise these issues with the Supreme Court," he said. By default, Dupree notes, that effectively gives the justices "the final word."
Throughout our country's history, lawmakers often have responded to Supreme Court opinions they disagreed with by passing legislation that trumped or nullified the justices' decision. But an upcoming law review article from University of California, Irvine, law professor Rick Hasen illustrates how that trend is slowing.
Between 1975 and 1990, Congress overrode Supreme Court decisions at a rate of 12 per two-year congressional term. By the period ranging from 2001 to 2012, that rate had plummeted to just 2.8.
Doug Kendall, president of the Constitutional Accountability Center, notes how challenging it has become for lawmakers to find common ground.
"It's very difficult to get anything done, much less a law that overturns a ruling -- particularly an ideologically divided ruling by the Supreme Court," Kendall said. "That's tough sledding."
Just this week, Justice Anthony Kennedy acknowledged the delicate tightrope judges walk when they take on matters many believe are more properly left to legislators. Calling it a "serious problem," Kennedy lamented, "a democracy should not be dependent for its major decisions on what nine unelected people -- from a fairly narrow background, a legal background -- have to say."
Many will remember President Obama's decision to publicly chide the Supreme Court during his 2010 State of the Union address as the justices sat silently, just feet away.
"Last week, the Supreme Court reversed a century of law to open the floodgates for special interests," Obama said at the time, as Justice Samuel Alito visibly disagreed.
The president was referring to the Court's 2009 Citizens United decision overturning key campaign finance regulations -- a prime example of a ruling that sparked heated pushback from both the White House and Capitol Hill but no actual legislative response. As such, that decision is the law of the land and remains intact.