What is it about democracy that so upsets the Democrats? We raise the question because of the fury with which they have been reacting to the two biggest Supreme Court decisions of the current term. The first, overturning Roe v. Wade, was called “cruel” and “outrageous” by Speaker Pelosi. The second, clobbering the Environmental Protection Agency with the Constitution, is called “catastrophic” by Congresswoman Alexandria Ocasio-Cortez.

Yet both these decisions are calculated to return to the most democratic of our constitutional branches, the Congress, authority over major matters — the right to terminate a pregnancy and the power to regulate industry and agriculture in respect of climate change. Far from welcoming the chance to legislate on these issues, the Democratic solons seem horrified that they might have to persuade their fellow citizens as to the country’s future. 

Mark, too, the message encoded in the dissents by the Supreme Court’s Democratic members. “We believe in a Constitution that puts some issues off limits to majority rule,” Justice Sonia Sotomayor writes in her dissent to Dobbs v. Jackson Women’s Health.  Removing questions like abortion from lawmakers is decried by Justice Clarence Thomas because it “exalts judges at the expense of the People from whom they derive their authority.”

Justice Elena Kagan, in her dissent in West Virginia v. EPA, envisions the federal legislature as a body unsure of itself and all too eager to surrender its powers to the unelected career bureaucrats of the executive branch. “Congress knows what it doesn’t and can’t know when it drafts a statute,” she writes, “and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise.”

This hardly reflects the Framers’ conception of Congress as the most powerful and political branch of government. They would find perplexing the current skittishness of today’s congressional Democrats. They framed the House to reflect the will of the people and the Senate to weigh the interests of the states. The idea of the Congress fobbing off the decisions to functionaries and judges would have horrified the founders.

It looks like the new court – now comprising six Republican appointees — is starting to address this legislative failure of will in a strategic way. In effect, the court is giving the Congress an opening to reassert its role in the constitutional scheme. It is a role Congress has forsaken for decades, starting when it allowed the Federal Reserve to seize power over America’s currency, and let rise in the 1930s the New Deal’s alphabet soup of agencies.

In those years, Democrats laid the foundations of an administrative state to exercise many powers properly belonging to the legislature. We’ve suggested the moniker “The Hamburger Court” to describe the work being done by the justices to reverse this, in honor of the Columbia law professor Philip Hamburger. The civil rights group he founded aims to “protect constitutional freedoms from violations by the Administrative State.”

In its ruling over the EPA’s regulatory overreach, the Supreme Court is hitting its stride in this campaign — and the escalating intensity of the Democrats’ response is a sign of progress. Today’s ruling undermines a legal doctrine known as “Chevron Deference,” by which bureaucrats are given broad power to interpret  laws passed by Congress. This deference has led to a withering of the powers granted by the Constitution to Congress.  

The EPA case is a reminder of how dramatically the Supreme Court is capable of moving against over delegation by Congress. The most famous case of the type, A.L.A. Schechter Poultry v. United States, saw a unanimous Supreme Court halt, in a fell swoop, the New Deal in its tracks. It concluded the Congress had been overly generous in delegating too much power to FDR’s National Recovery Administration.

Our own hope is that the latest rulings we’re starting to see from the Supreme Court are just a start — and that eventually the court could even get to the aforementioned Federal Reserve. It was created in 1913 and to it were delegated many of the monetary powers the framers thought were going to rest with Congress. They are overdue for a claw back. Justice Kagan calls the court’s decision on the EPA “frightening.” George III would have felt the same way.