The filibuster is why the courts have all the power

The conservative majority spent the last few weeks of their session rewriting the law to suit their whims, from striking down the legal right to privacy in Roe v Wade to placing themselves above the executive branch in agency regulation.

It’s perhaps the most radical few weeks in the entire history of the federal judiciary, and there’s nothing to stop the court from reordering public life according to their however they’re feeling on a given day. But how did we get to this point?

The answer lies in the filibuster, a legislative maneuver in which the minority party in the senate can avoid having a vote on a bill by not agreeing to end discussion. It takes 60 votes to overcome a filibuster and neither party ever really has enough votes by themselves to do it.

But the filibuster isn’t some ancient and sacred thing laid out by the founding fathers. In fact it was rarely used over the first 150 years or so of the nation’s history. It wasn’t until segregation was a hot issue in the senate that pro-segregationist forces really ramped up use of the filibuster. Now it’s used for just about every piece of legislation that’s not a spending bill.

The US Senate is the only legislative body in the entirety of the US that gives the minority the power to control which bills get votes. Legislative bodies should be able to actually pass legislation. The US Senate can’t pass legislation, and therefore barely qualifies as a legislative body.

So what does this have to do with the courts?

Without a national legislative body to make needed changes in the law, it became up to the courts to determine what the law says and what it can and can’t do.

Take Roe for example. The court ruled that bans on abortion were unconstitutional, but courts don’t have the power to actually write new law, only the power to interpret existing law. So state level abortion bans were struck down in 1973 when Roe was first ruled upon, but those laws stayed on the books unless the state legislatures repealed them. And so some states are seeing their decades old abortion bans suddenly become enforceable now that SCOTUS struck down Roe.

The way a normal national legislative body would typically operate in this case would have been to pass a law in the seventies that codified Roe and determined limits on abortion access and a basic framework of rights. But because of the filibuster, this never happened, turning the law into a political clown show of court stacking.

Senators have effectively ceded their own power to the courts. When one branch of government refuses to do its job, it throws the balance of power that founders originally wrote into the constitution out of whack. The courts have stepped in as pseudo legislators, and it’s all thanks to the filibuster.

Now we’re left with six people having absolute power over the country and literally no one can stop them because they have lifetime appointments. WE can thank the senate for that.