The Supreme Court won’t hear a challenge to the constitutionality of the Senate’s filibuster, a decision that one group says could make it impossible to question the Senate’s rules in the federal courts.
The justices on Monday rejected a petition from a coalition led by the progressive advocacy group Common Cause. The coalition, along with four House lawmakers, want to argue that the filibuster is unconstitutional because it effectively creates a 60-vote threshold to pass legislation and has led to congressional gridlock.
But the lawsuit has been thrown out on procedural grounds in lower courts. The Supreme Court, too, now has said the lawsuit can’t go forward.
Common Cause President Miles Rapoport called the Supreme Court’s refusal to hear the case “both short-sighted and ominous.”
The court’s decision makes it “logically impossible to challenge Senate rules that violate the Constitution,” Rapoport said in a statement.
The Senate could strip minority or female senators of equal voting rights and still be immune from judicial intervention, he said.
“Leaving the Senate a law unto itself is an anti-democratic outcome [that] cannot stand for long,” Rapoport said.
The Senate argued to the Supreme Court that it has the authority to create its own rules. Courts can’t order the Senate to change its rules, and a review of the filibuster would overstep the separate branches of government, lawyers for senators said.
The House members who helped bring the challenge are Democrats John Lewis of Georgia, Michael H. Michaud of Maine, Hank Johnson of Georgia and Keith Ellison of Minnesota.
The lawmakers say their votes for two bills during the 111th Congress — the Dream Act, which would have provided legal status to certain young immigrants, and the Disclose Act, which would have beefed up disclosure requirements in federal elections — were “unconstitutionally nullified in the Senate when the two bills were denied a vote despite having the support of a majority of senators.” The House passed both measures.
The Disclose Act had the support of 59 senators and the Dream Act had the support of 55 senators. But both bills ultimately stalled because they were short of the 60 votes needed to overcome a filibuster.