July 7, 2005
Congress and the S. Ct: who has the real power? ::
politics, supreme court, legal — No Tags
9:14 am
I was offline all yesterday on a site visit. (That’s a euphemism for saying that I was at a correctional facitily.) So I wasn’t able to post at all. With that in mind, I thought I’d call attention to a post by Daniel Solove over at Balkinization from a couple of days ago, in which he challenged the general assumption that the Supreme Court has significant power to make law. In reality, very few cases even make it to a jury trial, much less to an appeal all the way to the Supreme Court.
By contrast, the real power rests with Congress to make law. Even with some of the most controversial cases of this term (he named Raich and Kelo; I talk about Kelo here), Congress still had the power to intervene, to solve the inaction of the Court in both those cases. As Solove puts it:
Why hasn’t Congress resolved these problems? Where has Congress been? The Court shoulders the blame for not striking down the law in Kelo, but why does Congress get a free pass? Maybe Congress should be placed under the same intense and nasty microscope as the Court has been put under.
It’s a thoughtful piece, worth a read. One of the unfortunate outcomes of focusing attention on the Supreme Court is that it lets Congress off the hook when it comes to solving social and legal problems.
