The emerging supremacy of the judicial branch

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 our Constitution wanted a government divided into three co-equal branches to provide checks and balances that could hold each branch accountable to the law and the will of the American people. This division of power long has been a unique feature of our American democracy, but recently has come under scrutiny as fractious battles between the legislative and executive branches thrust the courts in an increasingly deciding role on issues of law and public policy.  

Supreme Court Chief Justice John Roberts lamented the court’s increasing scope in a speech in Manhattan last month, in which he said, “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 Supreme Court’s docket in taking on an ever-increasing, ever-complex caseload. 

At present, the court issues about 75 to 80 written opinions per year, out of the roughly 7,000 cases that are brought before it seeking review. This is a huge workload shared among only nine justices and their staff. The chief justice’s role is augmented by the fact that he must administer the calendar and decide which of the thousands of cases eventually will be taken up by the court. That’s complicated by the ideological divide among justices, Roberts’ own leanings and the role of the court in providing “stare decisis” — that is, a reliable path among its rulings that helps to 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 the states. Donald Trump’s presidency has featured a number of presidential actions by executive order — that is, without the review and consent of Congress — some covering areas that traditionally were decided by legislation. Trump’s executive orders have been as broadly skewed as they are numerous,  covering areas ranging from immigration and health care to climate change, natural resource management and education.  

To a large extent, President Trump’s executive privilege appears to take a cynical view of Congress, which typically takes time to research, write, deliberate and caucus before ultimately passing legislation. It is 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 has been more contentious than orders and policies 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 these policies from taking effect. 

The looming “elephant in the room” is impeachment, of course. The House has issued several subpoenas for documents and testimony to the executive branch, and the White House largely has 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 is clear that Congress is somewhat powerless without the ability to compel witnesses to testify and document information. 

As these conflicts over congressional subpoenas spill into the courts, they place the courts in a precarious position — having to circumscribe the power of the supposedly co-equal executive branch.

It cannot be overstated how deferentially the U.S. Supreme Court traditionally has approached rulings related to executive power. Perhaps the most seminal case in this regard, Marbury v. Madison in 1803, concluded that the executive branch had violated petitioner William Marbury’s property rights (by rescinding a commission) but that the courts were powerless to compel the executive branch to comply with the law.

That case has been widely debated among legal scholars for its ability to at once clearly enunciate the law while also clearly delineating the function of the court — not as an enforcement body, but as a decision-making institution. This ostensibly would keep the court in its own lane, and thus help to maintain its independence and legitimacy.

It is indisputable that the federal courts, up to and including the Supreme Court, are being inundated with cases, in numbers 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 — clearly was not constructed with this sort of caseload in mind. And the Supreme Court increasingly is 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. 

Armstrong Williams (@ARightSide) is the owner and manager of Howard Stirk Holdings I & II Broadcast Television Stations and the 2016 Multicultural Media Broadcast Owner of the Year. He is the author of “Reawakening Virtues.”