Why Have a Congress?

I want to discuss a passage in James Joyner’s recent post:

I’ve only recently come to adopt the view that the courts, and certainly the Supreme Court, have to consider the policy implications of their rulings, not merely whether the question before them is technically legal.

Yes, the elected branches—Congress and the President—should make public policy and be granted wide latitude in doing so. In theory, if increasingly less in practice, the people can toss them out in the next election if they dislike the policy. But a justice system is supposed to ensure justice, not merely legality. Sending people who have done nothing wrong to die in countries they don’t know is not justice.

I think that answer deserves some reflection.

As I understand it our three branches of government are designed to operate as follows:

• The legislative branch enacts laws, governing appropriations and other policies.
• The chief executive executes the law and proposes policies.
• The judicial branch interprets and applies the Constitution and the laws enacted by Congress, resolving disputes according to the law rather than according to its own policy preferences.

If the judicial branch determines the appropriate policies on its own, doesn’t that necessarily diminish the policy-making role assigned to Congress? If judges are to substitute their preferred policies whenever they believe justice requires it, what meaningful policy discretion remains for the legislative branch?

Furthermore, if judges are expected to reach the “correct” policy outcomes, by what standard are they to be evaluated? Lifetime tenure makes sense for judges whose duty is fidelity to law. It is much harder to justify if judges are expected to function as policymakers insulated from electoral accountability. That has not been the case historically. It would be a significant departure from our original structure as designed.

I agree with James that our current system is producing troubling results. Where we differ is in the diagnosis. My concern is that asking the judiciary to remedy policy failures created by the political branches ultimately erodes the constitutional division of responsibilities rather than repairing it. I think that members of Congress, the executive, and the judiciary are all acting in the directions in which their incentives, as they’ve evolved over the last 60 years, motivate them. I’ll have more on that in a later post.

The temptation to ask courts to correct failures by Congress and the executive is understandable. My concern is that every time one branch assumes the responsibilities of another, it changes the incentives under which all three branches operate.