Justice Anthony Kennedy testified a little bit ago before the House Appropriations Subcommittee on Financial Services and General Government regarding the Supreme Court’s budget request. In the course of that, Congressman Ander Crenshaw (R, FL), the subcommittee’s chairman, asked Kennedy about Congressional gridlock. Kennedy answered,
And we think an efficient, responsive legislation and executive branch in the political system will alleviate some of that pressure. We routinely decide cases involving federal statutes and we say, well, if this is wrong the Congress will fix it.
But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock.
Some people say that should affect the way we interpret the statutes. That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government, government that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.
I think, though, that Kennedy is missing part of the point (keeping in mind that the C-SPAN clip is an excerpt, but this particular answer is presented in its entirety). Federal statutes, under our Constitution, are political matters to be determined solely by We the People through our elected representatives in the Congress (with veto or signing input from our elected President). The Judiciary, that third fully functioning branch of the government under our Constitution, can only decide the legitimacy—the Constitutionality—of a Federal statute and, on finding it legitimate, can only apply that statute as it is written.
There is nothing in our Constitution that authorizes the Judiciary to do any part of law making in the event of gridlock. Gridlock is a political matter, not a judicial one, it’s an occasional outcome of the checks and balances built into our government by our Constitution, and it’s there on purpose: that would be the “check” part. The courts are in no way authorized to fill that void with their own view of what the law (or a law) ought to be. There is, in fact, no void to be filled.
It would have been good had Kennedy given a more complete answer.