Conventional wisdom suggests that the Supreme Court, like the country, is deeply divided along partisan and ideological lines. But this ignores the court’s historic recent course of events unanimously decisions and the fact that liberal and conservative justices often do not vote as blocs.
Critics of the Court tend to respond to this uncomfortable reality by saying something like: Sure, but on the big In the culturally divided cases, conservatives are the majority and liberals are the dissenting minority.
This is of course sometimes true. The Dobbs decision, which is Roe vs. Wade destroyed is a paradigmatic example. While I think Dobbs was decided correctly on the merits, it was also an important, polarizing statement along ideological lines.
I’m happy to admit that, but why can’t critics admit the opposite? If the court doesn’t rule along ideological lines in important cases, they simply stop calling the cases important. As legal analyst Sarah Isgur (my colleague at the Dispatch) and economist Dean Jens recently put it Politics, “If you define ‘important’ as the most politically divisive thing, then it becomes circular.” Which cases cause division? The most important. Which cases are important? The divisive one.
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Last year, the court accepted a case brought by anti-abortion doctors seeking to overturn the Food and Drug Administration’s relaxation of restrictions on the abortion drug mifepristone. In the wake of Dobbs, many understandably thought the case was important divisive.
Last week, however, the Supreme Court ruled 9-0 in favor of the pro-abortion rights position. If you listened closely, you could almost hear large numbers of the abortion rights court’s critics whispering, “It doesn’t matter.”
Gun rights are another clear example of partisan polarization. And last week the Supreme Court issued a ruling decision on this subject along the dreaded conservative-liberal axis. All six Republican-appointed justices voted to overturn a ban on bump stocks, which for all practical purposes convert legal semiautomatic weapons into automatic weapons, similar to machine guns, that have been illegal for a hundred years.
The ban on bump stocks was imposed by the Bureau of Alcohol, Tobacco, Firearms and Explosives under then-President Trump in the wake of the monstrous 2017 mass shooting in Las Vegas. So the supposedly partisan Republican judges overturned the Republican administration’s reinterpretation of the law, while Democratic appointees voted to uphold it. In that sense, it was yet another example of a decision that doesn’t quite fit into the conventional storyline.
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Still, liberal critics of the court immediately indicted the originalist fanaticism of the conservative majority, while rightists celebrated a “major victory” for the Second Amendment in the words of Texas Atty. General Ken Paxton. But the case had little to do with the Second Amendment.
Rather, the court correctly held that the Trump administration could not unilaterally rewrite the established meaning of a statute banning machine guns to include bump stocks. If Trump is re-elected, you can imagine that many liberals will suddenly be more favorable to the idea that presidents cannot unilaterally rewrite the law.
Justice Samuel A. Alito Jr.’s concurrence the majority opinion gets to the heart of the problem. Referring to the Las Vegas shooting, Alito wrote that “an event that emphasizes the need to change a law does not in itself change the meaning of the law.
“There is a simple solution to the disparate treatment of bump stocks and machine guns. Congress can change the law – and might already have done so if ATF had stuck with its previous interpretation. Now that the situation is clear, Congress can take action.”
What Alito is getting at is that Congress is not doing its job. The president is supposed to faithfully execute the law—hence the “executive”—and Congress, the legislature, is supposed to write the law. Both sides have conspired for decades to ignore this fundamental division of labor.
When the Trump administration banned bump stocks, it was responding to public pressure. But it also protected Republican lawmakers from being forced to vote in response to that public pressure.
Whether it’s forgiving student loans, banning bump stocks, controlling the border or setting trade policy, Congress doesn’t want the responsibility – or the liability – that comes with being a legislature. So members let the White House and the courts do their work for them, taking the opportunity to complain when they did it wrong or to take credit when they did it right. This dependence on the other branches raises the stakes of presidential elections and judicial confirmations.
Yes, polarization is part of the reason for Congress’s dysfunction. But the dysfunction of Congress also causes polarization.
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This story originally appeared in the Los Angeles Times.
