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Supreme Court left in the cold as Congress takes up mantle to uphold rights 

A bipartisan bill protecting same-sex marriage is a temporary fix to a bigger problem newly opened by the Supreme Court.

WASHINGTON (CN) — Only months after Justice Clarence Thomas suggested protections for same-sex marriage could be erased by the high court’s conservative majority, a bipartisan coalition of lawmakers have passed legislation to give it federal protection. This move signaled the Supreme Court’s reluctance to play its role in our democratic system and the further degradation of its authority. 

The Supreme Court holds neither the purse nor the sword; its real power comes from public acceptance of its role as the final arbiter of the law. If it fails to uphold the promise of equal justice under law and the guardian of the Constitution, questions emerge about its legitimacy as an institution in the U.S. democratic system.

Court watchers have speculated about the court’s legitimacy in recent years after political hardball from Republicans gave the conservatives a supermajority. The worry was the high court had become, not an arbiter of the law, but just another group of partisans enforcing their policy preferences on the country. 

When the court threw out the federal right to abortion this summer, the court’s role as a protector of essential rights under the Constitution was thrown into question. Not only did the ruling change the landscape for reproductive rights, but its rationale endangered a slew of other federally recognized rights. To reinforce those worries, Thomas spelled out danger for the right to contraception, same-sex consensual relations and same-sex marriage. 

Lawmakers saw the opening and jumped into it. With the passage of the Respect for Marriage Act by the House and Senate, Congress has preemptively rebuked interest from the justices in reviewing protections for same-sex marriage. 

“The fact that Congress — which has had a hard time legislating in controversial areas — did in fact pass the same-sex marriage bill, which is designed to respond to something the court hasn't done yet, is in fact quite significant,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview. “I think there is an attitude among members of Congress that the court may be undercutting rights and so they have to weigh in in advance in case the court does that.” 

In the case of abortion, the high court has seemed to welcome the delegation of their authority. But in other areas, this seems not to be the case. 

“The court’s really inconsistent, for example, it pushed abortion to the states, but it took away the state's discretion to enact gun control and took that for itself,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in a phone interview. “So I think it's picking and choosing.” 

This at times inconsistent application of when the court should or shouldn’t weigh in on federally recognized rights could result in problems for the court outside of calls of partisanship. If the court delegates its authority sometimes, how is it supposed to rein in that authority elsewhere? 

The court’s legitimacy isn’t something that can be thrown away with one ruling or one act from Congress. Yet at opportunities to show the public that it seriously considers the threats to its reputation, the court has been apathetic at best. 

“I think the court is reluctant to take this issue on in a full and frank manner, and that is going to continue to contribute to questions about legitimacy,” Lawrence said. 

Last month, The New York Times published an investigation revealing a conservative influence campaign targeted at conservative justices. The article claims this scheme resulted in Justice Samuel Alito leaking details of an unreleased opinion. 

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The report led to public uproar that seeped into the halls of Congress. Senator Sheldon Whitehouse and Representative Hank Johnson — members of Congress who lead congressional oversight of the judiciary — asked Chief Justice John Roberts if he planned to investigate and mediate the serious concerns identified in the Times' reporting. 

The court’s response — from legal counsel Ethan Torrey — was, essentially, Alito said he didn’t do it, so there’s nothing to see here. While the court may think that settles it, court watchers certainly don’t think so. 

“Everything you hear from the legal counsel or from the court itself is defensive, and it looks as if there is a values-free zone where ethics applies to others but not them,” Gostin said. “That's not going to restore the legitimacy of the court. It just looks like the court’s insular, enclosed and oblivious to outside criticism.” 

The court’s response to these new allegations comes in the wake of the Dobbs v. Jackson Women’s Health Organization leak. When the high court’s privacy traditions were violated, Roberts announced he was launching a full-scale investigation to track down the leak. Reports surfaced that, to get to the bottom of the betrayal, clerks were asked to give over their phones. Whether that information will ever filter into the public sphere remains unclear, to say nothing of the results of the investigation.

The 2014 leak does not appear to have garnered the same attention. The court’s response to members of Congress focuses on the repeated denials that Alito was the source of a 2014 leak. It then says Alito’s connections to individuals accused of involvement in the influence scheme did not violate ethical standards — the court currently isn’t held to any standards and instead “consults” guidelines. 

The high court’s indifference to these accusations leaves it in dangerous territory in terms of its legitimacy. 

As with the same-sex marriage bill, Congress could step in and assign an ethics code to the justices. But support for instituting these rules appears to be coming from only one side of the political aisle, and partisan lawmakers instituting rules for the high court has consequences for the democratic system as a whole.

“There are absolutely risks with this for the Democrats to appear to be curbing the Supreme Court,” Gostin said. “We saw that with the court-packing of FDR. So for democracy and then the vibrancy and legitimacy of the Supreme Court, it's really crucial for the court itself to get its house in order.” 

The reliance on Congress to step in when the court refuses to is also contrary to how the system of government is supposed to work. The court is supposed to uphold certain rights that transcend politics.

“On some level, everything could be about the political branches,” Lawrence said. “Protecting rights of minorities could be about the political branches. Protecting free speech could be about the political branches. That's not our system of government. Our system of government is that there are certain issues, there are certain rights, there are certain guarantees that are taken out of the political process precisely because we think they are transcendent. We think they're federal rights, that they come with the very idea of being an American.” 

If the country must depend on a political body to uphold the rights that are supposed to be protected by constitutional guarantees, then those rights are as unstable as partisan politics

“Congress passed this law and people who support same-sex marriage will be very happy about this,” Lawrence said. “Congress can pass it Congress can repeal it. A future Congress could repeal it.” 

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