The appellate court ruling on Obamacare underscores an increasingly important side effect of today’s congressional dysfunction and gridlock: The rising power of the courts, particularly the U.S. Supreme Court. Congress, unable to agree on almost anything, is incapable of responding to court interpretations of often-vague statutes even when the Court invites a response.
That’s a big change.
“Polarization already is leading to an increase in the power of the [Supreme] Court against Congress, whether or not the justices affirmatively seek that additional power,” Richard Hasen, a University of California at Irvine law professor noted in a 2012 law review article. In the past two decades, the rate of congressional overriding of Supreme Court statutory decisions has plummeted, he found, from an average of 12 in each two-year congressional term during the 1975-1990 period to an average of 5.8 overrides for each term from 1991-2000 and to 2.8 average number of overrides for each term from 2001-2012.