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August 15, 2014 4:54 PM Gridlock and SCOTUS

By Ed Kilgore

National Journal’s Ron Brownstein has always had a knack for boiling down complicated issues to their essentials. He does so again today in a column that argues a perpetual tendency towards divided government and congressional obstruction places the Supreme Court in an unusually pivotal position:

[V]oters have granted one party unified control of the White House, House, and Senate for only 12 of the past 46 years, far less than in previous generations. Except for brief periods (like Obama’s first two years), that’s meant presidents have been unable to advance their agenda legislatively without winning some support from the other party.
That frequently worked through the 1970s and 1980s. But after the flurry of deals between Bill Clinton and congressional Republicans in the mid-1990s, such cooperation has virtually vanished as legislators in each party, especially the GOP, have faced growing pressure from their base not to compromise with a president on the other side. While that trend rippled through Clinton’s final years and most of Bush’s presidency, it has roared to new heights under Obama.

I’d interject that this trend isn’t a coincidence, since it’s happened after the ideological sorting-out of the two parties made bipartisan ideological coalitions rare, and most recently, since one party has gone on an ideological bender of almost unprecedented length and depth (roaring indeed). But back to Ron:

The recent House lawsuit tacitly acknowledges that opponents are less likely to block Obama’s initiatives in Congress than the courts. Legal scholar Jeffrey Rosen notes that courts have judged executive power primarily through the standards set in the Supreme Court’s 1952 Youngstown Sheet & Tube Co. v. Sawyer decision that stopped President Truman from seizing steel mills to keep them operating during the Korean War. While the courts have occasionally rebuked presidents for defying Congress, that decision’s famous framework—which said the president operated in “a zone of twilight” when he acts without explicit congressional approval or disapproval—has generally led the judiciary to avoid interfering “in explicit squabbles between the [other] two branches,” notes Rosen, president of the nonpartisan National Constitution Center. “The question is will the courts … hold to this historic pattern?”

Brownstein notes that Chief Justice Roberts is reportedly worried by the damage the Court did to its reputation in Bush v. Gore—which, of course, made Roberts own appointment possible—but will be under enormous pressure from conservatives everywhere to reign in Obama’s efforts to avoid congressional obstruction.

Roberts’s sense of institutional self-preservation is a thin reed for presidents to lean on. With presidents from each party likely to assert more executive power, the stakes will rise for both sides in controlling the courts that limit that power. That’s why one of the most relevant facts in the 2016 presidential election may be that three Supreme Court Justices—Republican appointees Antonin Scalia and Anthony Kennedy and Democratic-appointed Ruth Bader Ginsburg—will be at least 80 when Obama’s successor is sworn in.

I know it’s a big part of the CW that regular folks can’t be convinced to go to the polls or vote for a particular candidate based on obscure stuff like Supreme Court appointments. But in 2016, they should.

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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