Federal courts have become a key part of the legislative process. At the same time, polls report falling public confidence in the courts.
When it comes to the U.S. Supreme Court, that's hardly news. Many know that the Court is now composed of four conservatives, four liberals (perhaps calling them non-conservatives would be more accurate) and one swing vote. It often decides partisan issues along predictable political lines.
Less well known is the degree to which lower federal courts are being used for partisan legislative purposes.
Take the recent action by President Obama to extend the definition of gun show sales, making background checks on gun purchasers more likely. He claims he has the right to take this action in implementing a federal law. His opponents say he has exceeded his authority under the Constitution and usurped the powers of Congress, which lacks the votes to block his move.
This kind of dispute increasingly ends up in a federal district court. The court, which may be located anywhere in the U.S., often is in a state where officials oppose the president's action. There is a good chance the judge will be the appointee of a Republican predecessor of Obama.
The Republican opposition that has developed the effective political use of the lower federal courts. In a current case against Obama's actions to limit the deportation of some illegal immigrants, the Republicans have been able to get a Texas court to suspend the Obama policy until the case is fully heard.
The federal district courts have increasingly become the arena for conflicts between the president and his opposition. At the very least, the appeal to court gives the Republicans the ability to delay the application of the president's policy.
Now this approach has become relatively common, it is possible that, if the roles were reversed, the Democrats would do the same thing.
The weakness in the process may be that the states filing the case could have a difficult time showing they actually would be hurt by the president's action. The general rule is that anybody making a complaint has to show real harm, not just an incidental effect. Courts might toss out cases where states cannot show a major effect on their official operations.
The Obama administration has opposed a lawsuit by Nebraska and Oklahoma against Colorado over its law allowing small amounts of marijuana for personal use. They claim its effect would spill over their borders.
But the Justice Department says the effect would be too slight to justify court action. That's true, and that's the same principle that could be used to stop the use of state harassment lawsuits against presidential action.
If the current trend is allowed to continue without limits on the complaints that can be brought against actions either by the federal government or another state, even if they are policy disputes without specific harm to the plaintiff, the courts could become an even more regular part of the legislative process.
That would inevitably harm an already wounded, impartial judiciary. It was once believed that, at least below the Supreme Court level, the president should appoint the most competent lawyers to be judges. But the political affiliation of judges has come to mean a great deal, especially in the expectation they will decide matters previously left to legislators.
With this possibility on mind, U.S. Senate Republicans heavily used the filibuster to block votes on Obama's court nominees. Appointees of Republican presidents controlled most courts.
Finally, the Democrats broke out the so-called “nuclear option” and eliminated the requirement of a two-thirds, super-majority vote before nominations to lower federal courts could even be considered.
That ended the domination of those courts by GOP appointees. Now Democratic appointees are the majority of federal judges.
Even with Republican control of the Senate, Obama has been able to get court appointees confirmed. Rather than trying to force liberals through the process, he has concentrated on appointing people who will add to diversity among judges – women, African Americans, Latinos.
Though the public may be getting used to the partisan spillover into the federal courts, it seems likely that falling public confidence results from a sense that the courts are less like independent umpires and more like active players.
The politicization of many of the federal courts also represents a reduction in their independent role among the three branches of government. That could have dangerous long-term effects.
To save the integrity of the judicial system, it would help if the Supreme Court would set a better example.