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July 15, 2014 9:56 AM The Courts As a Tiebreaker

By Ed Kilgore

At Salon yesterday, Heather Digby Parton (still feels strange using her full name in public!) had an interesting and novel theory about the Boehner lawsuit against the president: it’s aimed at enlisting the conservative majority on the Supreme Court as an active ally in breaking the congressional/executive gridlock in Republicans’ favor.

[A]s Jonathan Bernstein points out in this piece at Bloomberg View, members of the opposing party in Congress taking the president to court because they disagree with how he interprets a law is an unprecedented approach to litigating such questions. Normally, these cases are brought by citizens who can show standing. This suit, if it is allowed to go forward, would be a very big change to the constitutional system….
[It] would make the Court substantially more powerful than than the other two branches as it becomes the arbiter of disputes that would normally fall under the purview of the political system. Historically, if you don’t like what a president is doing (or a Congress, for that matter) you take your complaint to the people and let them decide. It would appear that Speaker Boehner and the Republicans are cutting out the middle man — us.
But there may be even more to this than simply empowering the Supreme Court (with its comparatively youthful conservative majority.) We know that the demographic changes in the electorate mean the Republicans are looking at a very difficult future in terms of national elections unless they are able to tame the radical beast they’ve created. Barring unforeseen circumstances, it is highly unlikely they will be able to win the presidency any time soon. But it’s very possible that with their gerrymandered districts they could keep the House for some time to come and the undemocratic nature of the Senate insures that it can always be up for grabs.
And all of that is despite a Democratic national majority. After all, obstructing the federal government’s ability to enact new programs and fund the ones that still exist while narrowing the executive branch’s ability to act in domestic matters is the GOP agenda. And the fact is that it can be perfectly realized as a minority party. If they can put this last step in place — having their conservative Supreme Court majority “arbitrate” on behalf of the Republicans in congress — they could be in the driver’s seat for some time to come. Whether the people like it or not.

As I try to point out regularly, the most dangerous influence the “constitutional conservative” movement has had on the GOP is sanitize strongly anti-democratic impulses on the theory that the Constitution permanently enshrined eighteenth-century governing norms no future popular majority should ever be allowed to overturn. So maintaining them by any means available is not only acceptible but mandatory. You’d generally assume the Bohner suit will fail for lack of standing, or because the courts refuse to get involved in a “political question” or adjudicate the separation of powers between the executive and legislative branches. But we’re in a new age where the slow but steady success of the Federalist Society has truly called into question much of what I was taught in law school.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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