The growth of the Court’s influence has coincided with that of the federal government itself. As the ambition of federal legislation increased from the New Deal onward, the possibilities for running afoul of the law increased dramatically. At the same time, the growth of the administrative state introduced the proliferating regulations of a multitude of federal agencies, administrations, and commissions, which have the force of law. Members of Congress found it simpler to “do something” about major problems by writing vague legislation and leaving the details to be worked out by “experts” in administrative agencies. They could pass laws that aspired to solving great problems without having to reach the compromises required to gain the necessary votes or being accountable for making the hard choices that governing demands.
All too often, the unelected experts charged with making those hard calls were not the non-political technocrats they were billed as but were pursuing a partisan end. Even an administrative state staffed by a mythical breed of pure-minded, disinterested bureaucrats would be subject to an almost irresistible tendency to metastasize. Regulation by agencies is relatively simple to promulgate—it merely takes the time and patience necessary to announce a rule, take comments, and show that the comments were in some way taken into consideration. Navigating bureaucratic procedure and red tape is easy compared with cobbling together a majority (or supermajority) of both houses of Congress and winning the president’s support. So with the growth of the administrative state, the volume and scope of federal law also grew. Issues that once were left to the states or the people were now literally made into federal cases.
As Congress’s ability to legislate has declined, the temptation to turn to simpler ways of governing has grown. Unable to work with Congress, President Obama famously turned to his “pen and phone,” that is, to executive orders and administrative agency action. Another alternative to dealing with a gridlocked Congress has been the courts, which themselves have abdicated some of their own authority.
Hemingway, Mollie- Severino, Carrie- Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court . Regnery Publishing. Kindle Edition
The authors recounted the sordid despicable maneuvers to derail the Kavanaugh appointment- but their summary dug deeper into why the SCOTUS has become such a focus in our government. This has evolved since the New Deal and was acceptable as long as it leaned in one direction. It is time to realize the possibilities when this power they created is in the hands of the opposition. The most important development in a more conservative court is to restore Congress’s legislative powers and responsibility.