New litigants challenging the rules of the administrative state will be arguing in the future to a Supreme Court that is ready to listen.
Nebraska Sen. Ben Sasse’s opening remarks in the confirmation hearing for Supreme Court nominee Brett Kavanaugh won plaudits on both left and right. In his remarks Sasse discusses the politicization of the judicial confirmation process and of the judiciary more generally. He argues both phenomena arise from congressional abandonment of its legislative task over the last century—and specifically from delegating legislative authority to the executive branch. In essence, pushing legislative powers from Article 1 of the Constitution into Article 2’s executive branch has distorted the role of courts as established in Article 3.
To be sure, each separate claim is correct: The confirmation process and the judiciary have been politicized, and Congress has ceded legislative power to the executive branch. The hypothesized link between the two phenomena, that is, Sasse’s argument that the latter has caused the former, however, doesn’t quite work.
First, to praise. Sasse centers his remarks on Congress giving away its legislative power to the executive branch. While Sasse concedes “Congress would have a hard time sorting out every dot and tittle about every detail” required by modern policy-making (a thread his remarks do leave dangling), the real reason for the amount of congressional delegation to the executive branch, he says, is blame shifting. Legislators immunize themselves from constituent backlash against burdensome, if necessary, laws, by instead delegating decision-making to electorally unaccountable executive agencies. So far, so good. (Although I might push Sasse on blameshifting as the causal mechanism. But that is for another column.)
Yet while congressional delegation of legislative power to the executive branch is certainly its own constitutional and policy problem, what does the executive-legislative relationship have to do with the politicization of judicial confirmation and of the judiciary more generally?
Here is where Sasse’s argument doesn’t quite work. Sasse argues legislative delegation to the executive branch has transferred politics from Congress to the Supreme Court. Because “people yearn for a place where politics can actually be done,” and Congress has politically neutered itself, the confirmation process and the judiciary more generally have become politicized.
On the one hand, it isn’t clear why the judiciary would become politicized because the legislative branch transfers decision-making power to the executive branch. First, as an initial matter, Supreme Court decisions generating widespread political controversy don’t tend to be cases pertaining to oversight of administrative rulemaking, they are constitutional cases, particularly derived from the Court’s Fourteenth Amendment jurisprudence and the associated rights incorporated by that jurisprudence. Consider abortion, flag burning, prayer in school, and the like: none of these relate to Congress ceding its own power to the executive branch.
Further, while Chevron deference is a much contested doctrine these days, even among judges, nonetheless, courts have provided, and continue to provide, significant deference to administrative interpretation of congressional statutes. This depoliticizes judicial decision making in the sense of removing judges from second-guessing most policy decisions made by executive agencies. It is not clear the judiciary takes the rap for administrative decisions when Congress cedes its power to the bureaucracy.
Further, it’s unclear why voters would protest Supreme Court nominations when they object to administrative regulations. After all, angry constituents can protest in front of executive agencies just as easily as they can protest in front of the Supreme Court, and it is just as easy to protest at the confirmation hearing of executive appointees as it is to protest the confirmation hearing of a Supreme Court nominee.
All said, it is a good thing a U.S. Senator raised the delegation issue in a high-visibility venue. Sasse could have, and should have, raised it as its own critical, standalone constitutional issue without trying to shoehorn it in also to explain the protests at Kavanaugh’s hearings, let alone as a theory of judicial politicization more generally.