WHY REPUBLICANS NEED THE COURT
The Republicans have a problem. They lost their majority in the House of Representatives in 2018 and are facing an election in which they seem destined to fall further behind. They control the Senate but that majority has become completely dysfunctional. The Supreme Court has become their “court of last resort”.
The Republicans in the Senate are not able to create and to pass real programs partly because both parties in both houses have lost their ability to function freely as legislators. All power has become concentrated in the leadership. So Nancy Pelosi in the House along with a few of her cohorts decides almost everything. And in the Senate everything is controlled by Mitch McConnell who fearing that successful legislating will benefit the Democrats, has simply shut everything down.
Republicans in the House and the Senate seem to be competing to be the most conservative. In a democracy, on the face of it, that seems odd but the process has produced that result. Candidates in this country are almost always chosen in party elections (primaries). Primaries for congress are held in August when very few people are thinking about politics. For both parties only a small number of people vote in those primaries (often between 10 and 15 %) and those people tend to be the most “motivated” (read extreme).
Those very conservative candidates (for the Republicans) have been able to convince voters that their Democratic opponents are “radical socialists” who want to take their guns away. A great many people really vote about guns and abortion, the candidates’ actual fitness for office barely matter.
The result is that when Democrats pass bills in the House, Mitch McConnell then refuses to allow his fellow Senators to even consider them. So, the Senators, with nothing to do, spend a great deal of time battling with each other trying to prove their conservative bon-a-fides. That is important because they are now desperate to avoid becoming the target of a presidential tweet.
Part of the problem also is that the Congress in the recent past has come to depend on the Executive Branch headed by the president to propose legislation and usually to actually write it. Bills often arrive at the Capitol from the White House already written. The Departments, after all, often know what they need. The House and Senate then work and let them pass.
Unfortunately Donald Trump is simply not capable of writing and promoting government programs. He just does not know enough. And the people around him have only a limited interest in government programs which they fear will be helpful to their rival Democrats. Their real interest is in killing programs already in place.
The Founding Fathers at that convention in Philadelphia were wiser than they knew. They created a governmental structure that included, almost as an afterthought, the Supreme Court. It isn’t really clear that the Founders really thought through what the Court would do. They had the Congress create the court system after they had disbanded and gone home.
What has happened is that the Republicans who, because their elected representatives are often simply incapable of legislating the things they really want (Why are they not voting to end the ACA?), are simply leaving their “dirty work” up to the courts. The branch of government that the Founders gave almost no thought to has become the decision maker of last resort.
That is why the selection of a new member of the Court to replace Ruth Bader Ginsburg is so important. Thanks to Chief Justice Roberts the Court has managed to preserve to some degree legal abortion and the other major Republican target, the Affordable Care Act. Adding Amy Coney Barrett to the Court will make Roe and the ACA more vulnerable.
Those could be handled (as they should be) by the Legislative Branch but its conservative members lack the courage to carry out their real wishes. If they can create a conservative unelected Court to do the killing for them they win without facing the consequences. The Founding Fathers thought that the Congress would decide everything and the President would carry it out. The Court was an afterthought. The Founders would be shocked!
H.J. Rishel
8/27/2020
