“Yet the current trajectory of national politics, in which Congress increasingly plays a secondary role in policymaking and the executive consolidates more power, promises to further empower the Supreme Court, and thus its most frequent swing vote — now, likely Chief Justice John Roberts. Justice Kennedy’s exit is a reminder of the ways in which Congress has abdicated its coequal role.
Consider the court ruling upholding Mr. Trump’s travel ban: In essence, it declared that the president has broad authority to determine who is allowed to enter the country, and that the president’s authority is granted by Congress. (Had Congress intended “to constrain the President’s power to determine who may enter the country,” the ruling said, “it could have chosen language directed to that end.”) The implication was that the legislature could have chosen to limit those powers, but has not done so.
The argument over Mr. Trump’s travel ban was thus a back and forth between the executive and the judicial branches; Congress could have played a more substantial role, but it chose not to.”
“A weak Congress — and there is little doubt that this Congress, which has declined to pass a budget, been frozen in tactical indecision on immigration and largely given up on the idea of advancing a legislative agenda, is weak — empowers not only the executive but the judicial branch as well.
If that weakness persists, the future of the court may be a kind of legislating from the bench — less in the sense that conservatives have long complained about, where judicial activists overturn or rewrite duly enacted legislation, but in the sense that the court is stepping in to act where Congress has not, particularly as a check on executive power.
To restore the balance of power, Congress would need to regain a sense of authority and independence as a coequal branch of government. That would mean asserting its own power to legislate as well as to check the power of the executive — two projects the current Republican Congress has largely abandoned.
Doing so could help cool the fervor around a retirement like Justice Kennedy’s. Instead, lawmakers from both parties have embraced the notion that elections matter in large part because of whom Congress will appoint to the courts, an argument that effectively cedes the authority of the legislature.”