Above Politics: Congress and the Supreme Court in 2017

The Supreme Court figured prominently in the November 2016 elections because of the vacancy on the Court that resulted from the death of Justice Antonin Scalia. This Essay picks up the story by examining the place of the Supreme Court in national politics during 2017. It traces congressional efforts to respond to statutory and constitutional rulings by the Court as well as steps to regulate the operations of the Court and the work of the Justices. Although in 2017 Republicans and Democrats introduced numerous bills directed at the Court, these bills were generally modest in scope and, even so, did not make it through the legislative process by the close of the year.

The Supreme Court prides itself on being above politics in the sense that it is guided solely by the rule of law. The 2017 experience suggests the Court may be above politics in a quite different sense: that it is beyond the reach of the political process and can decide cases with little risk of response from Congress.