OPINION: In the Constitution, Congress Comes First — In Real Life, Not So Much

There is a reason the founders started with Congress when they created the blueprint for our representative democracy. It’s the institution closest to the American people.

This isn’t just political theory. For all their faults, members of Congress throughout our history have tried to stay close to and understand their constituents. They still do. More than any other branch of government, Congress reflects the feelings of the diverse and ever-evolving population of the United States — even if, with population shifts boosting rural power in the Senate these days and gerrymandering affecting House districts, the proportions are out of whack.

So, one of the more puzzling aspects of the evolution of power in Washington, D.C. has been the extent to which Congress has sat by over the decades while its strength has ebbed. For the most part, we think of this in terms of its relations with the presidency, with everything from war powers to budget-making to an increasing reliance on executive orders putting presidents of both parties in an ever-stronger position to set and steer the national agenda.

But recently, CNN’s Zachary Wolf drew attention to a similar process taking place vis-à-vis the Supreme Court. The mechanisms are different, but the result is the same: Congress loses room to maneuver.

Wolf was actually delving into a recently published book by University of Texas law professor Stephen Vladeck, called “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” Vladeck’s chief concern is what for the last few years has come to be called the “shadow docket” — referring to cases that are not formally heard by the Court, with oral arguments and then long written decisions and dissents, but instead are generally unsigned orders that arrive without explanation.

They can be quite consequential. As Vladeck explained to Wolf in their interview, the Supreme Court last year intervened in redistricting cases in Alabama and Louisiana in such a way that it “helped to give the Republicans the majority they currently have in the House.” It did so in 2020 and 2021 as well, especially to address cases involving COVID regulations. The Court’s power, Vladeck points out, lies not just in its decisions, but in choosing which of the many issues arriving on its doorstep it will decide.

 In fact, that’s not just true of cases on the shadow docket. Until about a century ago, the Supreme Court was required to decide on any case under its jurisdiction. That, Vladeck argues, “made it a lot harder for the justices to have an agenda. It made it a lot harder for the justices to target particular disputes and look around for cases.” The reason the Court can now pick and choose — and hence steer the national agenda — is because Congress gave it the power to do so, especially with the 1988 Supreme Court Case Selections Act, which granted the Court full authority over whether to hear appeals from Circuit Court decisions. So, the Supreme Court chooses which 80 or so cases it will hear out of the 5,000-7,000 it is asked to review each term.

To be sure, it’s hardly the case that the Supreme Court has avoided precedent-setting decisions in the past — dating all the way back to Marbury v. Madison in 1803, when the Court gave itself the power of judicial review over executive and legislative decisions. Still, if you think about our recent political history — especially around abortion — you can see Vladeck’s point: The Court does not reflect the thinking of a majority of Americans.

 For members of Congress who would rather not have to cast unpopular votes on controversial issues that could cost them a seat, having the White House or the Supreme Court make those decisions can be handy. But as Vladeck argues, “When we look at the Court today — at the ethics issues, the docket issues, the legitimacy debates — a lot of what’s going on here is a court that’s just not remotely checked and not worrying about being checked.” Congress historically had the authority to exercise control over the Court’s ability to set the agenda, he insists, and there’s no reason it can’t again. The balance of power in Washington, D.C. demands it.              

Lee Hamilton, 92, is a senior advisor for the Indiana University (IU) Center on Representative Government, distinguished scholar at the IU Hamilton Lugar School of Global and International Studies, and professor of practice at the IU O’Neill School of Public and Environmental Affairs. Hamilton, a Democrat, was a member of the U.S. House of Representatives for 34 years (1965-1999), representing a district in south-central Indiana.