The Supreme Court has been politicized in recent decades as it delves into social disputes usually left for other political branches of government, and Congress has themselves to blame, Sen. Mike Lee (R-Utah) told The Epoch Times.
Lee said Congress has in many instances surrendered their legislating authority to the executive branch of government. This has led to the executive, the judiciary, and administrative agencies expanding their reach in order to fill the void left by lawmakers.
"The far more common type involves a delegation to the executive branch. We pass a law that says, in effect, we shall have good law in area X and we hereby delegate to commission or department or division Y the power to make and interpret and enforce rules carrying the force of generally applicable federal law in that area," Lee said. "And from that moment forward, that division or department, or commission, is the lawmaker, and is also the law enforcer."
This comes as President Donald Trump and Senate Republicans engage in a fierce battle to fill the vacancy in the nation's top court left by liberal Associate Justice Ruth Bader Ginsburg. If Trump is successful in confirming a nominee onto the bench, it could result in a conservative lean for years to come.
The president and Senate Republicans have made considerable efforts to change the composition of the judiciary, by nominating and confirming younger conservative judges, in order to shape the long-term direction of the country.
The Utah senator said people have taken more interest in and have become more emotional about court decisions in recent decades because judges have taken a more prominent role in resolving certain social disputes, taking debatable matters beyond disputes, and tackling questions that are ordinarily left for the political branches of government. The federal government and states have also played a role by asking courts to resolve their political disputes.
This has ultimately resulted in a public perception that the courts are politicized. Lawmakers, and even the president, have also added fuel to the flame with some of their remarks.
"The judiciary is supposed to be the least dangerous branch because it looks in the rearview mirror," Lee said. "It doesn't look forward. In other words, it's not there as a policymaking body. It's not there to say this is how things should be and must be and we'll be moving forward. It's there to look in the rearview mirror in the sense of saying, as of the date in question, the law said X."
He believes judges are there to decide what the law said at a particular time and what particular words meant at the time they were passed into law, or put into the U.S. Constitution. This would make issues in dispute less controversial and less of an emotional exercise.
"If instead, the judiciary is out there looking for ways to radically change our culture, or to decide controversial issues of social policy. Yeah, you're gonna have a lot of emotion behind it. I think that's unfortunate. It's also unnecessary," he said.
The Trump administration and Senate Republicans have decried the impact of judicial overreach or judicial activism on a number of crucial policies. This is particularly seen when a single federal judge rules beyond the scope of a particular case, in some orders known as nationwide injunctions.
As part of the road to fix the perception of the court, Americans need to change the way they understand what judicial power is, Lee said.
"It's not there, to come up with a set of rules to govern society there. They don't come up with rules. They decide what the rules that have already been written say," Lee said. "That distinction between those two things is when we've overly politicized the court, that's why we've got such a problem today."