Eagle Forum Legislative Alerts

Thursday, September 23, 2010

Focus Shifts to Lower Courts

“Gridlock” is a term customarily applied to Congress, particularly when government control is divided between Democrats and Republicans. But gridlock at the U.S. Supreme Court, which is divided between liberal and conservative voting blocs, means that much power shifts to the lower federal courts. This year's most important case concerned the extension of the Second Amendment to the States. It took the Court many months to finalize, and the justices wrote 214 pages of opinions. Other cases on the Supreme Court’s docket resulted in contentious decisions that left many questions unanswered due to a lack of agreement among the Justices.

Gridlock will be even more apparent in the next term that begins in October. The Court has agreed to hear 39 appeals – roughly half its annual workload. Only 3 of them have real political significance: (1) whether violent video games are free speech, (2) whether a liberal group has standing to challenge a tax credit system for paying the tuition of students sent to private schools in Arizona, and (3) whether an old Arizona immigration law is constitutional (not the current law now in the news, but a law that was passed last year). That’s it.

This means that many final decisions of tremendous importance will be made by lower federal courts, ranging from immigration to global warming to marriage to abortion to health care. Our nation is being remade by court order, but now most often by appellate and trial courts rather than by U.S. Supreme Court.

There has been no slowdown in judicial supremacy, but the frontier of this struggle is shifting from the U.S. Supreme Court to lower courts. Less is being resolved by the High Court, and more by lower federal courts, so who is nominated and confirmed to those courts is exceedingly important, too.

Listen to the radio commentary here:

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