Congress’s paralysis has also encouraged the Supreme Court to enter the political fray. Normally the judicial activism of recent years could be checked by Congressional action. But not now. Justice Anthony M. Kennedy’s opinion for the majority in the 2010 Citizens United case, which struck down limits on corporate campaign contributions, rested partly on the presumption that Congress would require corporations to disclose their political expenditures. But no bill requiring full disclosure has stood a chance of making it through the quagmire.
The court’s decision this summer in Shelby County v. Holder handed Congress the task of coming up with a new, updated formula for deciding which states and localities need permission from the Justice Department, under the Voting Rights Act, to make changes to their election processes. But legislative paralysis makes the passage of any new formula highly unlikely. Seen in this light, Chief Justice John G. Roberts Jr.’s deciding vote last year to uphold the Affordable Care Act probably reflected his reasonable fear that the court would otherwise be viewed, not unfairly, as just another political battleground.