There is an interesting article in Politico today about how anger at Congress is increasing in the Federal Judiciary. The article focuses mainly on how upset the courts are at the financial impact of sequestration and the shutdown on the courts themelves. But there is one highly suggestive account of how a Federal judge, asked to exempt the case brought by the House about “Fast and Furious” from the shutdown delays, responded: “While the vast majority of litigants who now must endure a delay in the progress of their matters do so due to circumstances beyond their control, that cannot be said of the House of Representatives, which has played a role in the shutdown that prompted the stay motion.”
Of course, judicial deference to Congress, a flexible concept at best, is deeply engrained in our jurisprudence. But, thinking as a former appellate advocate, I would find it hard right now to keep a straight face trying to make an argument that the court before which I was arguing should assume that Congress had carefully thought through all the implications of its actions, and should be presumed to have meant what it said, and said what it meant.
While there are surely judges, even on the Supreme Court, who will take recent events as further evidence that Democrats are utterly without responsibility, it is likely that at least some conscientious centrist judges will internalize whatever the ultimate broad lesson the public as a whole takes from these events.
At a minimum, therefore, it may be that arguments about lack of resources to meet constitutional requirements will become less sympathetically heard. Many government due process issues, for example, are decided on Mathews v. Eldridge, which includes cost to the government as part of the balancing test. Today’s Congressional process on financial decisions can hardly be said to be one to which deference should be paid.
Moreover, the same lack of deference might well extend to other matters. It would be nice to think that this would result in an increase in judicial willingness to protect rights.