Invoking the major questions doctrine is the wrong way to enforce nondelegation concerns.
Avoiding the Next 50-48 Vote: Disempower the Court
After the Senate voted 50 to 48 to confirm Justice Brett M. Kavanaugh, Senator Elizabeth Warren tweeted that she was “not going to sugarcoat anything. We lost a tough fight. And it hurts. What happened today will touch every single person in this country, in some very real & terrible ways. But it’s OK to step back for a minute, take a breath, & lean on the shoulder of someone you love.”
Oh, please. For those who were awaiting the permission of a U.S. senator to lean on a shoulder, you are authorized to proceed. For the rest of us, yes, let’s take a breath. If a Supreme Court justice whose nominal job is to apply laws to specific cases is touching “every single person in this country, in some very real & terrible ways,” then we have bigger constitutional problems.
Those of us, including your correspondent, who raised questions about Kavanaugh’s judicial temperament based on his confirmation hearing—and who proceeded to have good arguments with good friends—owe him the opportunity to show we were wrong about that issue. He bears an equal responsibility to prove his defenders on the same questions right, inasmuch as anyone entrusted with power always bears the burden of showing he or she is using it responsibly. All well, all good.
The real question is how to take the bitterness out of these fights. And the answer is to take the power out of the Court. The problem is not public or legislative polarization. It is not the nihilist Democrats or the demonic Republicans. It is not the sad decline of the Senate which, in its former glories, feasted in lush pastures on greener grass.
It is the fact that every Supreme Court nomination is a battle over every issue, especially the most explosive ones, which have been shunted to the courts. Imagine an omnibus bill attempting to resolve abortion, same-sex marriage, health care, campaign finance, the scope of presidential investigations and more with a single up-or-down vote in the Senate on which amendments were not allowed and compromise, by the nature of the measure, was impossible. Chances are, outside groups would spend some money. Dander would rise. Tempers would flare. Accusations would be made.
No one would think that healthy for the institution of the Senate or for a regime of self-government. Yet that is increasingly how every judicial nomination appears.
Yes, this one was accentuated by the replacement of the swing justice Anthony Kennedy with the originalist Kavanaugh. But there is always a swing justice on a 5 to 4 court, which is itself a problem. The Court is so empowered that the justice who can deliver a fifth vote on a closely divided body is him- or herself immensely powerful. That creates a temptation, in this fallen world, to forsake clear principles and predictable law in favor of swinging between blocs.
There is no answer but to return to Publius’ regime, one in which Congress makes law, the President executes it and the courts apply it to specific cases. Self-government supplies an adequate normative basis for such a return, but there are others.
In addition to dispersing rather than centralizing power, congressional government would lower the stakes of elections and nomination battles. In that sense, it would be the most effective campaign-finance reform plan available: It would make impossible, and therefore discourage, anyone’s depressing a single lever in hopes of altering the entire regime or a wide range of its policies.
This return to congressional rather than judicial government should entail judicial self-restraint. Every occupant of political office ought to have an understanding of that office’s proper boundaries. The separation of powers model of Federalist 51 does not, contrary to civic myth, assume every political actor will stretch his or her powers to the breaking point and beyond.
But neither does Federalist 51 depend on each branch to auto-police by self-restraint. Congress and the presidency check one another, and we assume the judiciary checks both. Who guards the guardians? The answer, at present, is no one, because for all the mystery and authority and deference with which we have imbued judges, we are still accustomed to thinking of the judiciary as the weak link in the regime. It is not. Publius’ dismissal of judicial power on the grounds that the courts have judgment but not force vastly understates the power of judgment in a popular regime.
Congress has ample means with which to assert its own authority against the other branches, including the judiciary. It has become a supplicant to them instead. In the Kavanaugh hearings, senators grilled the future justice on whether the Court would force the President to comply with subpoenas—something Congress itself has ample power, if it behaves institutionally, to do. Members have been in court, begging judges on a weak case to enforce the Emoluments Clause. Whatever one thinks of whether the clause is violated every time an official of a foreign government books a room at a Trump hotel, it is clearly within Congress’ power to enforce.
Suppose, instead, that Congress presumptively stripped the appellate courts of jurisdiction in cases it expected would trigger deep social divisions? Suppose it muscled its way back into separation of powers disputes rather than expecting the judiciary to referee them?
This is a great deal to hope. It is also the only hope for deflating the stakes of nominations to the Court. It is indeed sad that the Court has been politicized, disproportionately by those who will now accuse its decisions of being politically influenced. But there is a surefire way to depoliticize the court, and that is to deprive it of political power.
Until that happens, it does not matter if Democrats or Republicans are in charge. It does not matter if the balance on the Court is narrow or thin. It does not matter if the Senate is restored to supposed glories. Supreme Court confirmation battles will always be bitter, and their antes will continue to escalate, because the stakes will simply be too high.