When the Court acts unconstitutionally
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The judiciary, no less than the other branches, is bound by the Constitution, including the separation of powers it establishes directly and implicitly. As Jamelle Bouie observes, the most significant part of Kagan’s dissent in Nebraska v. Biden was her pointing out that the Court clearly transgressed its constitutional limits:
But I don’t want to discuss Roberts’s majority opinion as much as I do Justice Elena Kagan’s dissent. Kagan wrote something unusual. She didn’t just challenge the chief justice’s reasoning, she questioned whether the court’s decision was even constitutional.
“From the first page to the last, today’s opinion departs from the demands of judicial restraint,” Kagan wrote. “At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent.”
She continued: “That is a major problem not just for governance, but for democracy too. Congress is of course a democratic institution; it responds, even if imperfectly, to the preferences of American voters. And agency officials, though not themselves elected, serve a President with the broadest of all political constituencies. But this Court? It is, by design, as detached as possible from the body politic. That is why the Court is supposed to stick to its business — to decide only cases and controversies, and to stay away from making this Nation’s policy about subjects like student-loan relief.”
The court, Kagan concluded, “exercises authority it does not have. It violates the Constitution.”
It’s a remarkable statement. To say that the Supreme Court can violate the Constitution is to reject the idea that the court is somehow outside the constitutional system. It is to remind the public that the court is as bound by the Constitution as the other branches, which is to say that it is subject to the same “checks and balances” as the legislature and the executive.
Kagan’s dissent, in other words, is a call for accountability. For Congress, especially, to exercise its authority to discipline the court when it oversteps its bounds.
The Court ignored Article III’s requirement that it decide only “cases or controversies” when it granted standing to a party that suffered no injury from the policy being challenged. (There’s also a very strong argument that it also did so in yesterday’s other major case, when it decided a case based purely on hypotheticals — we will come back to that in another post.) And the Court also transgresses its boundaries when it engages in egregiously bad faith statutory “interpretation,” such as holding that Congress authorizing the Secretary of Education to “waive or modify” student loan obligations does not allow the Secretary to waive or modify obligations in ways the Court does not approve of as a policy matter.
Congress has the constitutional tools to hold the Court accountable. Alas, the combination of the Court having built up a lot of good will among American elites, it being the star chamber of one of the competitive national parties, and the malapportioned Senate make using these tools enormously difficult for the time being. If the Court keeps acting like this — and there’s no reason to think that it won’t — a showdown with the political branches is eventually coming,