In his opening statement at the hearings on Judge Brett Kavanaugh’s nomination to the Supreme Court, Senator Ben Sasse (R., Neb.) argued that our understanding of how the three branches of the federal government should work has gone badly awry.
Sasse’s statement has drawn praise from conservatives, including at NRO, and the Wall Street Journal published a version of it. It’s not hard to see why the senator has earned the applause. He made accurate and important observations that transcend the partisan scuffling over Kavanaugh—observations that have been central to conservative thought for a long time but that too few elected officials ever consider.
The passion that so many people invest in the Supreme Court, he said, is a symptom of constitutional dysfunction. Congress should be “the center of politics” (presumably meaning national politics). But Congress has shirked the job of legislating, instead ceding much of its power to the courts and to the bureaucracy. It has given up power in order to hide from responsibility.
All true. But while the pieces of Sasse’s argument are sound, he has stuck them together in a way that does not fit. He tries to argue that congressional delegation of power to executive-branch agencies has caused the public to turn to the courts.
Here’s the core of his case:
When the administrative state grows—when there is this fourth branch of government—it becomes harder for the concerns of citizens to be represented and articulated by officials who answer to the people. The Supreme Court becomes a substitute political battleground. . . . Because people can’t navigate their way through the bureaucracy, they turn to the Supreme Court looking for politics.
This account is implausible.
It is certainly true, as Sasse says, that Congress has expanded the power of the federal courts by passing vague laws that the other branches of government must essentially finish writing. But most of the public involvement in Supreme Court confirmation battles does not concern the administrative state at all. There are a lot more citizens on each side who are worked up about the Court’s decisions on abortion, same-sex marriage, guns, and other social issues than who are concerned about reining in or empowering “alphabet-soup bureaucracies.” Congress didn’t cede power to the bureaucracy to set policy in most of these areas. It didn’t cede power to the courts, either. The courts just took it. To the extent Congress is responsible for the current division of power over these issues, its mistake has been not to wrest that power back.
The politicization of Supreme Court confirmations is much more easily and directly traceable to the Court’s social-issues rulings from the 1960s onward than it is to the congressional delegation of power to the executive branch that began decades earlier.
The Journal’s editors have accurately summarized Sasse’s argument. Their headline runs, “Blame Congress for Politicizing the Court: When lawmakers hand power to bureaucrats, the people expect judges to act as superlegislators.” The Court actually brought on much of this politicization itself. (See Justice Antonin Scalia’s dissent in Planned Parenthood v. Casey for a fiery and focused elaboration of this point.) And we will not succeed in restoring a properly functioning constitutional order if we forget it.