The Supreme Court Meets a Gridlocked Congress

Abstract

During oral argument in King v. Burwell, Solicitor General Donald Verrilli cautioned the Court that striking down the administration's interpretation of the Affordable Care Act's (ACA) subsidy provision would cause immediate harmful consequences – leading to millions losing health insurance coverage. Justice Scalia responded that if the Court's decision would lead to such a calamitous result, Congress could surely react to prevent it. Verrilli responded rhetorically Well, this Congress, Your Honor? Verrilli's comments highlight the current state of Congressional gridlock. The 112th and 113th Congresses were two of the most ineffective in history. The current 114th Congress thus far seems similarly unable to reach legislative compromises. The current state of Congressional gridlock raises important policy questions as well as separation of powers concerns. As the exchange between Scalia and Verrilli suggests, Congress's inability to respond to Supreme Court decisions raises the specter that the Supreme Court might decide cases differently than it otherwise would in an effort to avoid incurable consequences resulting from the Court's decision. On the other hand, if the Court ignores Congressional gridlock it may strike down a statute in a fashion that creates draconian results without a potential remedy. These concerns are exacerbated by the fact that the Roberts Court has faced, and will likely continue to face, numerous important challenges to Congressional enactments effecting large numbers of Americans. This essay discusses the Roberts Court in the current age of Congressional gridlock. It examines relevant opinions by the Court and comments by the Justices in an attempt to better understand how the Court views its own role during a time of Congressional inaction.