This post argues that Congress is in a state of inability to address national issues of key importance and therefore it should come as no surprise that the Supreme Court will take over in these areas to deal with issues previously not within its purview. This brings about a lot of political and constitutional issues that I will tackle below.  

In The Federalist Papers, James Madison argues that a lack of stability in lawmaking diminishes respect for the rule of law. Frequent changes in lawmaking “deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability,” Madison writes.  If laws change from year to year (or administration to administration), citizens lose respect for the rule of law. This tendency is heightened in a world of global commerce and international alliances.  

What Madison and his colleagues did not anticipate is the current morass of the national legislature in the United States: incapacity (and unwillingness) to handle virtually any national problem with meaningful legislation. America’s bicameral legislative system requires two highly fractious legislative chambers to agree, and the separate elections of the President and Congress frequently lead to divided government. Although the separation of powers wisely safeguards against the excessive energy of narrow majorities, an era of increasing partisan polarization has created a long-term legislative paralysis.   

To fill the gap created by a crippled legislature, two unstable alternatives have arisen: a Supreme Court increasingly tasked with resolving difficult political questions and the President flaunting Congress with executive action. Neither of these options provides durable solutions or the democratic legitimacy necessary for legislation. Taken together, they are conducive to an angry and alienated populace.  

The proliferation of executive orders leads to the kind of instability and diminished respect for the rule of law that Madison warned against. Attempts by the judiciary to resolve fundamental debates about human rights, executive power, and personhood strip both sides of the dignity of legislative compromise. Democracy depends on the sense that all sides have a fair say, but when unelected lawyers issue decisions, the losing side understandably feels embittered because judges cannot be held accountable. This does not produce durable, consensus-driven legislation that has the stamp of legitimacy that is essential to ensure and maintain political cohesion.  

Consider President Biden’s aggressive executive action: just hours after being sworn in, he issued dozens of orders, many of them directly contradicting prior orders by his predecessor.  This was greeted with applause by Biden’s progressive supporters, delighted to see quick action on issues like climate, transgender rights, and racial justice. But Biden’s supporters discovered a truth that is increasingly difficult to ignore. Executive orders are to policymaking what opioids are to pain management: an alluring quick fix that doesn’t offer lasting solutions.  

The next Republican president will certainly revoke Biden’s orders immediately upon assuming office. The more presidents and base supporters rely on unilateral action to change policy, the more the opposition will follow suit upon retaking power. Executive policymaking has encouraged a mutually escalating pattern of policymaking whiplash whereby presidents are no longer embarrassed to bypass the democratic process of legislation.  

Because policymaking by executive fiat bypasses the give-and-take that is fundamental to legislation, it frequently produces political backlash. First, the Supreme Court often checks the executive’s most ambitious actions, as happened (i) with Trump in his attempt to end DACA (Deferred Action for Childhood Arrivals, a controversial piece of immigration legislation issued in 2012 by the Obama administration), and (ii) with Biden on student loan cancellation and the vaccine mandate.  

Moreover, the aggressive executive action often alienates voters outside of the president’s base. Policy outcomes that completely shut out one side create a mutually escalating sense of alienation, and the majority party will eventually pay the price. The resulting backlash from voters, most obviously felt in the midterm, leaves the president further crippled. Every midterm since 2006 has been marked by the same outcome: as a result of pursuing base-supported policies that lack support from the majority of the electorate, the voters punish the president’s party. To borrow a phrase used at the dentist’s office, voters are like teeth: ignore them, and they’ll go away.  

Perhaps the only thing worse than a runaway executive is an unaccountable Court. At least voters can register their displeasure with the president and Congress on election day; no such recourse exists for an increasingly aggressive Supreme Court. On a host of other difficult policy issues including abortion, religious freedom, tribal sovereignty, and even now homeless regulation, legislators have effectively ceded their prerogative on the issues that affect their constituents. Although they quickly decry judicial activism (which really means ‘a Court ruling I don’t like’), an active Court gives the lawmakers a pass from taking difficult votes that might risk their careers. In his famous dissent in Planned Parenthood v. Casey (1992), Justice Scalia pointed out that the Court’s attempt to impose a national rule for abortion laws did nothing to settle the issue. Quite the opposite, the decision “fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption.” 

Ferocious as the backlash to the court’s recent reversal in Dobbs v. Jackson Women’s Health Organization in 2022has been, states have since addressed the issue at the ballot box and through legislatures. In Arizona, the state’s high court recently allowed a 19th-century abortion law to take effect, whereupon the legislature and governor quickly acted to repeal the ban. This is how legislative democracy is supposed to work: state lawmakers (as “laboratories of democracy”) respond to the will of the people by changing the law. As Phillip Wallach argues in his important new book Why Congress, the legislative arena is where any difficult question should be addressed, legislative debate gives all sides a respectful hearing. When all parties to a debate are given the chance to speak at the podium (literally or otherwise), even the defeated side gets the dignity of getting to go back to their constituents and say they fought the good fight. Unfortunately, because judges are not accountable to voters, judicial attempts to reshape policy are much more likely to exacerbate divisions rather than build stable consensus. 

Unfortunately, the legislature’s inability to take on important questions has impelled the judiciary to address issues it is woefully ill-equipped to resolve. Take the Court’s recent foray into homelessness policy. In Grants Pass v. Johnson, the Court is weighing the constitutionality of state and local regulations against homeless encampments. Given the complex causes of homelessness and the various stakeholders involved, there are few issues on which unaccountable jurists in Washington could be more ill-equipped to deal with. Homelessness is a neighborhood-level problem that involves a host of difficult legal and constitutional issues: unaffordable housing, untreated addiction, public safety, and tenant’s rights.  

Whether one takes an originalist or evolutionist view of the 8th Amendment—which forbids cruel and unusual punishment—it is difficult to argue that the federal judiciary is the best forum for a society to address a neighborhood-level problem. Legislators are accountable to large constituencies, thus they are more attuned to the various dimensions of this issue. Federal judges are accountable to no one. Consider Houston, a nationally recognized success story in reducing homelessness. To help unsheltered homelessness, Houston has a coalition that coordinates 100 agencies to match unsheltered people with the right services. Such an innovative solution, which has drawn homelessness policymakers nationwide to attempt to emulate Houston’s success, would have almost certainly never arisen from any judicial attempt to address the problem.  

On issues with obvious urgent nationwide importance, the national legislature’s stalemate has led to states delving into policy areas explicitly delegated to Congress.  This is most painfully evident on immigration, a defining national issue with economic and human rights implications.  Although the Constitution explicitly reserves immigration policy as a power for the national Congress, the national legislature has been unable to pass serious immigration policy in nearly three decades. Formal amendment of the American Constitution requires a two-thirds supermajority in both chambers followed by approval from three-quarters of the state legislatures. In a Congress that can barely pass a budget, this threshold is virtually impossible for brokering a compromise on an issue as complex as immigration. 

Accountability is the essence of a democratic government. Implicit in the United States’ constitutional republican system is the promise that leaders who make decisions on the citizens’ behalf will answer to the voters. Not only does this give voters recourse when their leaders behave unaccountably, but it gives the myriad of stakeholders a chance to influence public policy. The Supreme Court lacks this legitimacy, and the same is true with executive orders. Although presidents are accountable to the entire electorate, policymaking by executive orders tends toward policies that do not enjoy the broad approval of legislation and often results in backlash by the voters. Although Court victories or executive orders may appease a party’s base supporters, they lack the durability and legitimacy of the legislative system. Only legislative consensus can produce a government of the people, by the people, and for the people. 

Knox Brown, PhD is an assistant professor at Tulsa Community College in Tulsa, Oklahoma USA. He has taught American politics since 2013, lecturing on American federal government, state & local government, and American political institutions. He earned his PhD in political science from University of California, Los Angeles and his bachelor’s degree in political science from Auburn University. His dissertation studies partisan change in American state legislatures. He is a teaching professor who has previously written on teaching in diverse classrooms.