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Checks and balances have failed.
A key element of American government, the idea came from John Locke, a 17th-century Englishman. Almost unknown today, he was once seen as one of the greatest men in history.
Locke thought there could be no neutral judge, so a system was needed to ensure that the government could not override the “social contract” that made possible government of, by and for the people. The U.S. Supreme Court has just proved that there is no neutral judge.
From Locke’s thought came the interlocking powers of the president, Congress and the Supreme Court. Now, the court, supposedly the weakest branch, is the strongest and Congress, the branch meant to be the strongest, is the weakest.
The failure of Congress to make the laws is the result of the Senate’s suicide by filibuster.
Three recent Supreme Court decisions show the result. In the absence of a federal law on abortion, the court found no constitutional right for it. It decided that a state could not prevent a person from openly carrying a gun. And it ruled that Congress had not given the executive branch the power to mandate major new measures to reduce power plant air emissions.
The court managed to make a lot of Americans unhappy. Its decisions probably offended the beliefs and expectations of a majority of people.
The reason those decisions displeased so many people is that they overruled decades of experience that had become part of the fabric of the country. A minority that had opposed them as those rights and practices had evolved now dominate the court and have gained the power to reverse them.
The biggest threat in these recent decisions came in Justice Clarence Thomas’s concurring opinion to overturn Roe v. Wade. He urged the court to reconsider whether the Fourteenth Amendment promise of “equal protection” should extend to individual rights other than those in the Bill of Rights. He seemed to have the agreement of three other justices.
The Constitution recognizes that people have rights protected beyond those in the Bill of Rights. The Fourteenth Amendment has been interpreted for over a century to protect such rights. Of course, they must be identified. The right to privacy is one. The right to govern your own body has been another.
Does the Constitution give the Supreme Court the unchecked power to decide what laws are allowed and what rights should be protected? No. The court’s powers may be exercised “with such exceptions and under such regulations as the Congress shall make.”
In fact, Congress has limited the scope of Supreme Court decisions. And the authority to be the last word on whether a law fits the Constitution was given to the court by the court itself in 1803. That’s not in the Constitution.
Suppose Congress voted to take that power away from the Supreme Court. Under its own view, the court might determine that decision itself was not allowed by the Constitution. What then could Congress do?
It could enlarge the court to include enough justices to block or reverse such a decision. It can do that by a simple majority vote and with the agreement of the president. But layers of court packing could lead to constitutional chaos.
There is another solution that I have long advocated. Though federal judges have lifetime appointments under the Constitution, making term limits impossible, Congress has historically authorized temporary federal judges. It could do so now.
They increase the size of a federal court and can then automatically take vacant seats created when other judges leave the bench. The court can gradually return to its original size.
Why doesn’t this happen in response to the latest Supreme Court decisions? Where are the checks and balances on the court or has it made itself the last word?
Congress hasn’t acted because the Senate has let 41 senators representing less than 20 percent of the population use the filibuster to block votes. That’s not in the Constitution. There’s now no filibuster on appointments to the Supreme Court, which explains the current conservative composition of the body, created by a simple Republican majority.
The filibuster protects either party from finding itself in the minority and being run over. A party believes it needs that protection against major political change. Did that work? By these three major decisions, the Democrats were run over.
The responsibility for the failure of checks and balances lies with the Senate. U.S. Sens. Angus King and Susan Collins are among those who fear the worst if the filibuster ends. They cede the unelected justices their role as American legislators.
Thomas wants the law to return to how it was before women and African-Americans had the right to vote. He has issued fair warning and needs only one more judicial ally.
It’s time for Congress to end the filibuster and take back lawmaking.