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Has Power Tipped in Favor of High Court?

Some of the more conservative justices on the Supreme Court weren’t shy about assessing their neighbors across the street Wednesday during oral arguments in a closely watched Voting Rights Act case.

Justice Antonin Scalia questioned Congress’ motives for renewing a central provision of the statute that was being challenged at the court, suggesting it was enacted because lawmakers feared political blowback for not doing so, not because the majority supported the measure. Justice Samuel A. Alito Jr. puzzled over why Congress didn’t at least update the formula used to determine which geographic areas the law covered. Justice Anthony M. Kennedy suggested it was a lack of will.

“Congress just didn’t have the time or energy to do this,” Kennedy said.

Just as members have been increasingly willing to criticize high-court decisions that don’t comport with their own interpretation of the law, the justices have shown in recent high-profile cases a willingness to parry back. The problem for lawmakers is that, at the end of the day, the justices likely have the upper hand.

“The court takes note of Congress and its dysfunction the same way everyone else does,” said Rick Hasen, a law professor at University of California, Irvine.

Take the court’s 2010 ruling in Citizens United v. Federal Election Commission, which lifted restrictions on independent political spending by corporations and unions and, in the process, tossed out a section of the Bipartisan Campaign Reform Act of 2002. Congressional Democrats were quick to lambast the decision and propose various legislative fixes.

“I cannot remember a time in my 36 years in the Senate when I have come to this floor to criticize even decisions I disagree with, but this one I am because it goes to the very core of our democracy,” Sen. Patrick J. Leahy, D-Vt., told CQ Roll Call afterward.

“The best long-term solution is a constitutional amendment that would prevent the court from overturning sensible campaign finance regulations,” Sen. Tom Udall, D-N.M., told CQ Roll Call.

Sufficient support for a constitutional amendment has yet to materialize. Legislation to increase disclosure of political money was introduced by Chris Van Hollen, D-Md., in the House and by Charles E. Schumer, D-N.Y., in the Senate but was never enacted.

In the Voting Rights Act case, justices are weighing the constitutionality of part of the law Congress reauthorized in 2006 that requires areas with a history of racial discrimination to submit any proposed voting changes to the Department of Justice or a court for approval. A decision is expected before the court recesses at the end of June.

Hasen, in a soon-to-be-published law review article, examines how political polarization in Congress has changed the traditional back-and-forth between the legislative and judicial branches and notes how the balance of power has tipped in favor of the court.

“There’s a broader story to be told here,” Hasen said in an interview.

The Supreme Court considers and interprets federal laws passed by Congress. In the past, if the justices found a statute to be unconstitutional, lawmakers could restructure it or pursue a constitutional amendment. If Congress did not agree with the court’s interpretation of a law, it could pass a new version. But that process has ground to a halt.

Hasen notes in his article that from 1975 to 1990, there were an average of 12 congressional overrides of Supreme Court decisions during each two-year Congressional session. From 1991 to 2000, the frequency dropped to 5.8 overrides. From 2001 to 2012, only 2.8 overrides occurred per Congress.

“In a highly politicized atmosphere and with Senate rules usually requiring sixty votes to change the status quo, the court’s word on the meaning of statutes is now final almost as often as its word on constitutional interpretation,” Hasen writes.

That has not been lost on the justices.

During oral arguments on the constitutionality of the 2010 health care law, Scalia acknowledged that the court’s ruling would likely be the final word on the matter. The justices had to decide whether the individual mandate that required people to purchase health insurance could be “severed” from other parts of the law that weren’t being challenged.

“You can’t repeal the rest of the act because you’re not going to get 60 votes in the Senate to repeal the rest … the rest of the act is going to be the law,” Scalia said.

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