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The Emerging Supremacy of the Judicial Branch

The opinions expressed by columnists are their own and do not necessarily represent the views of
AP Photo/J. Scott Applewhite

As the Supreme Court begins its new term this week, its docket is filled with a number of controversial cases that could shape the political landscape for the next half-century or more. The framers of the Constitution wanted a government divided into three coequal branches in order to provide checks and balances that could hold each branch accountable to the law and the will of the American people. This tricameral division of power has long been a unique feature of our American democracy, but it has recently come under scrutiny as fractious battles between the legislative and executive branches have put the court in an increasingly deciding role on issues of law and public policy.

Chief Justice John Roberts lamented the court's increasing scope in a speech in Manhattan this month: "We do seem to be getting more and more involved in every aspect of society in a way that would have been surprising to the framers of the Constitution." Roberts' critique of the role of the court is borne out by the practical impossibility of the court's docket in taking on an ever increasing, ever more complex caseload. At present, the court issues about 75 to 80 written opinions a year -- out of the roughly 7,000 cases brought to the court seeking review. This is a huge workload shared among only nine judges and their staff. The chief justice's role is further complicated by the fact that he must administer the calendar and decide which of the thousands of cases seeking review will eventually be taken up by the court. The chief justice's role is even further complicated by the ideological divide among justices, his own leanings and the role of the court in providing "stare decisis" -- that is, a reliable path among its rulings that helps stabilize societal expectations about what is legal and what is not.

A large part of the Supreme Court's mounting caseload stems from increasingly contentious conflicts between the legislative and executive branches and states. Trump's presidency has featured an incredible number of presidential actions by executive order -- that is, without the review and consent of Congress -- covering areas that have traditionally been decided by legislation. Trump's executive orders have been as broadly skewed as they are numerous, covering areas from immigration to health care, to climate change, to natural resource management, to education. To a large extent, Trump's executive privilege takes a cynical view of Congress, which takes its time to research, write, deliberate and caucus before ultimately passing legislation. It is far, far easier to declare it so from the lofty perch of the executive office.

But one of the perhaps unintended side effects of doing a complete end run around Congress is that states and legislatures are forced to resort to the courts to object to executive branch policies and orders. None of these have been more contentious than the executive orders and policy changes surrounding immigration. The Trump administration's orders covering child detention and family separation have taken up considerable bandwidth in federal courts, as Congress and the states have sought to block many of Trump's policies from taking effect.

The looming elephant in the room is impeachment, of course. The Congress has issued several subpoenas for documents and testimony to the executive branch, and the White house has largely stonewalled Congress's legislative oversight and fact-finding endeavors. While recognizing that much of the fight over what constitutes "high crimes and misdemeanors" necessary to impeach a president comes down to partisan rancor, it's clear that Congress is largely powerless without the ability to compel witnesses to testimony and documentary information. As these conflicts over congressional subpoenas spill out into the courts, they place the courts in a precarious position -- having to circumscribe the power of the supposedly coequal executive branch.

It cannot be overstated how deferentially the Supreme Court has traditionally approached rulings related to executive power. Perhaps the most seminal case in this regard, Marbury v. Madison concluded that the executive branch had violated Marbury's property rights (by rescinding a commission) but the courts were powerless to compel the executive branch to comply with the law. The case has been widely debated among legal scholars for its ability to at once clearly enunciate the law and clearly delineate the function of the court -- not as an enforcement body but as a decision-making institution. This would ostensibly keep the court in its own lane and thus help maintain both its independence and legitimacy.

It is undisputable that the federal courts up to and including the Supreme Court are being inundated by an extraordinary number of cases that the Founding Fathers never imagined. The administrative machinery of the court -- which generally consists of a few clerks in addition to court officers and judges -- was not constructed with this sort of caseload in mind. And the Supreme Court is being increasingly asked to decide controversies between the executive and legislative branches -- thus putting it in a precarious position of being blamed for overstepping its constitutional mandate.

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