Filibuster constrains Congress from answering high court rulings
The same day the Senate passed the first significant gun violence legislation in 30 years, the Supreme Court expanded limits on who can carry concealed weapons. The next day, the high court eviscerated the constitutional right to an abortion.
Democratic lawmakers responded to the 6-3 decision by calling on the White House and their Republican colleagues for federal action to protect abortion access, but legislation that would codify Roe v. Wade stands poised to fail in the 50-50 Senate. Against this image of a gridlocked legislature, the brazenly active nature of the current Supreme Court stands in sharp relief.
It’s not that bipartisan action of any kind is impossible in Congress — last week’s gun bill known as the Bipartisan Safer Communities Act had the backing of 15 GOP senators and is now federal law — but it took several brutal mass shootings to forge that compromise and Congress by sheer design requires larger voting blocs than the high court does to alter national policy.
Nearly all congressional legislation requires a supermajority of 60 votes in the Senate to overcome the filibuster, a delay tactic wielded by minority party members that can doom legislative proposals in the Senate where the parties each hold 50 seats.
Meanwhile, the Supreme Court operates under a bare majority system, which has led to a dynamic where the current court’s conservative bloc can hand down legal interpretations on issues that Congress’ slim majority simply doesn’t have the numbers to tackle with the same sweeping authority.
“Congress is designed to be a somewhat slow-moving, deliberative body. That’s the whole idea, we get lots and lots of people involved in the decision-making process, which slows things down but ideally would slow things down to ultimately lead to a good decision and potentially a decision that involves a lot more voices than the judicial system sometimes does,” Tara Grove, a professor at the University of Texas School of Law, said in an interview.
The high-stakes cases before the court and the deeply partisan divide in Congress can serve as a self-perpetuating cycle, driving lawmakers to place an emphasis on judicial nominations and turning an increasing amount of attention away from Congress and onto the Supreme Court.
“Congress is unable to take the lead and do significant things itself. In part, the one thing that Congress does do through the Senate is to confirm judges. So all of a sudden, everything is about judges, and we look to the court to fill policy voids,” Neal Devins, a professor of law and government at William and Mary Law School, said in an interview.
Devins said that dynamic has shifted some political emphasis that usually focuses on Congress to the Supreme Court, where the conservative court is reshaping the legal and political landscape.
“I wonder if it’s a little bit more like Congress, willing to take starker positions that seem more partisan, willing to have greater distance, not just ideological distance but emotional distance, between the majority and the dissent,” Devins said.
Kristin Goss, public policy and political science professor at Duke University, said the constantly shifting power in Congress, which could change again in the November midterm elections, is partly responsible for the emphasis on the Court as a quasi-policymaking branch.
“What’s making those feelings extra intense is that our national government, at least being Congress, is so closely divided, that it can’t really deliver much stability from year to year, from term to term, because it can flip so easily. It’s going back and forth, back and forth. I think everything feels like nothing is stable. Nothing’s predictable. Nothing’s incremental, because the courts can issue these sweeping decisions that make fundamental changes to what we thought was settled policy,” Goss said in an interview.
With their lifetime appointments, the high court justices are expected to be nonpartisan. Against their increasing embrace of political posturing, however, Democrats in Congress remain stuck in a push-and-pull between the ambitions of progressive members of their party and the numbers game required to get a bill across the finish line.
“The court is in action mode,” Devins said. “Unless they do away with the filibuster, [Congress] is not going to be in action mode for the foreseeable future. But doing away with the filibuster — be careful what you wish for, right. Democrats may be in power now, but if they do away with the filibuster, that may be not good for them in the long run. And I’m sure that Democratic leadership understands that.”
Nixing the filibuster to advance legislation in the Senate without the support of Republicans has been a debate among Democrats throughout Biden’s first term in office, but moderate Democratic lawmakers such as Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona have opposed the idea, keeping the rule in place as bills on voting rights and social policy wither on the vine.
Back in September, the House passed a bill that would have protected the right to an abortion from state-level bans, but it puttered out in the Senate.
Speaker of the House Nancy Pelosi called for the elimination of the filibuster earlier this week meanwhile in order to pass legislation that would codify the right to an abortion into federal law.
Doing away the filibuster would bring with it the chance that, if Democrats become the minority party in the Senate come November, they would be without one of their greatest bargaining chips.
And even if Democrats are able to forge a coalition behind federal legislation to codify abortion access, that legislation would likely face rocky legal waters unless lawmakers passed a constitutional amendment ratified by the states — something that hasn’t happened in 30 years.
“I’m a little bit concerned because I do think if the Congress is able to somehow pass legislation that federalized a right to abortion but it falls short of a constitutional amendment, I think within two years that this court will strike that down, especially if it’s one of the Commerce Clause pieces of legislation that I see being floated,” Renee Cramer, professor of law, politics and society at Drake University, said in an interview.
With a constitutional amendment all but doomed in Congress, state legislatures will carry the brunt of lawmaking responsibility on gun and abortion policy. But most state legislatures, where political power on these key issues is being diverted, are not currently in session.
“Literally any solution [from] people who are interested in in safeguarding a right to this kind of health care will have to be a grassroots solution, a statewide solution, a political solution and a constitutional amendment,” Cramer said. “They’ve overturned Roe. I don’t want to say this, but it’s over. The court is not the place where people who want to safeguard access to reproductive health care can go for the next 10 to 15 years.”
In the past, Congress has responded to controversial high court rulings by passing legislation.
With the decision Employment Division, Department of Human Resources of Oregon v. Smith in 1990,the Supreme Court saw no constitutional violation in the firing of Native American men fired from their jobs at a drug rehabilitation center for using peyote during a religious practice.
Three years later, Congress passed the Religious Freedom Restoration Act to protect such religious practices. But in 1997, the Supreme Court ruled the law could not be applied to the states, only to federal employers, highlighting the difficulties of enshrining certain perceived rights into federal law.
“We’re at a point in U.S. history again where we’re going to require that kind of coordinated congressional action. And boy are the midterms going to be interesting and important. Because we do have gridlock right now in Congress. Congress is fully capable of acting right now, but not acting in a way to undo what many people perceive as the damage the court just did by overturning Roe v. Wade,” Cramer said.