Filibuster constrains Congress from answering high court rulings

WASHINGTON (CN) — 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.