Here Are the Key Supreme Court Rulings Made by Silent Dismissals
The Supreme Court has made some major decisions-by-dismissal in the last few weeks, first with same-sex marriage by refusing to hear appeals from lower courts and then with the decision Monday to pass on hearing a case regarding the Senate filibuster rules so that 60 votes would not be needed in order to end a filibuster on legislation. They argued that the majority rule under the constitution made the 60 vote necessity problematic. “The filibuster rule, designed to protect the minority’s right to be heard, has been transformed into a weapon that allows just 41 of 100 senators to squelch debate and block action on any bill, no matter its importance or public support,” states the Common Cause. The suit came from four Democrats within the House or Representatives: Keith Ellison (Minn.), John Lewis (Ga.), Michael Michaud (Maine), and Hank Johnson (Ga.), plus Common Cause, a non-partisan citizen lobbying group. The Supreme Court’s refusal was given without any further details or commentary, but basically indirectly approves the lower court ruling that argued among other things that those who had brought the suit did not have locus standi and were not in a position to bring the suit.
Ultimately, the Supreme Court has arguably made careful and empowering decisions in stepping back; never say inactivity isn’t a force to be reckoned with. While it’s frustrating for equal-rights advocates to watch states pass contrasting laws regarding LGBT civil rights, it does ultimately place the law in the state’s hands. This smooths over some of the Republican arguments — some of which frankly come across as homophobic under the guise of states rights — and by refusing to rule, cut off appeals that would have prolonged blockages to equal rights in many places. In the case of the Senate filibuster rule, it appropriately leaves the lawmaking for the Senate within the Senate’s own hands, or so argued Senate attorneys, saying to change the filibuster rule would be to “do what no court has ever done — inject the judicial branch into the Senate’s internal deliberations and usurp the Senate’s power to determine its own rules and procedures,” according to The Washington Post.
On the one hand, that’s the definition of balancing powers: for the judicial branch to consider a dysfunction within the Senate, and help aid in its correction. On the other hand, that’s only true if you consider the Senate dysfunctional in a permanent sense, as opposed to at a historically frustrating juncture that’s led to partisan behavior and subsequent backlash in the form of a hasty and aggressive suit.
If the purpose is to protect the minority opinion, the filibuster may have gone too far in doing so this time around, and U.S. District Judge Emmet G. Sullivan drew out a fair argument from Common Cause lawyer Emmet Bondurant when he asked whether the Dream Act — voted down by the House of Representatives — would really be passed regardless of whether or not it made it through the Senate.
Bondurant pointed out that the issue was with the balance of power. “If it had been voted down, that’s the democratic process,” he said, according to the Washington Post, referring to the failure to reach a Senate vote. “It was not. It was vetoed by an undemocratic process,” he said. Yes, this argument would undoubtedly change if a Democrat were the individual filibustering, but the partisan nature of the argument doesn’t invalidate the importance or relevancy of its implications. But the Supreme Court is right to recognize that the suit is being made from a position of weakness, and during a time of extreme division between the left and right in Washington, not to mention added tension resulting from the proximity to elections. It’s also arguable that the Dream Act, and immigration reform in general, are hot button issues at the moment that neither party appears capable of passing, and will have to reproach following the midterm election, when the Senate numbers are decided for the coming term. So even if the case brought in 2012 allowed Democrats in the Senate to vote in favor of the Dream Act, it’s possible that following the vote and potential loss of the majority, they would no longer have been able to push the legislation through anyhow — especially given that there weren’t enough votes to knock out the filibuster before the election.
Basically, the filibuster may have been effective beyond the Senate floor, stretching into elections and beyond. Ultimately, if filibuster rules remain a problem both parties find themselves facing within the Senate, and that house of Congress sees a need for reform, it would arguably be a better source for change.
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Follow Anthea Mitchell on Twitter @AntheaWSCS