THE WAY IT'S SUPPOSED TO WORK

Senators are apparently responding to the public outcry over the recent FCC rule change (link from Daily Kos). This is good, and it's probably the way bureaucratic rulemaking is supposed to work at the independent regulatory agencies: a divided but relatively balanced body solicits public comments, and if the decision becomes controversial, they can call the shots as they see it but the outcry alerts Congress to the issue. If the whole thing works well, then members of Congress will take up their responsibility and write a new statute in response to the public pressure. So, we'll see what happens.

Imagine if courts worked in a similar way: a complex issue gets litigated, everyone acknowledges that there are partisan differences in the way the decision falls (no hand-wringing about the fact that fault lines of dissent also correspond with party lines), the public is asked to comment, and Congress responds to the public outcry in some fashion. This wouldn't work with all issues, of course, but it is, ultimately, a sane way of dealing with difficult issues. From this perspective, one main difference between the justifications for the FCC's decision and the justifications for a decision on abortion, say, are that the policy implications are front and foremost in the public discussion, and very few people are worrying about the sacredness and hallowness of the institutions or their particular decisionmaking procedures. Another is that courts believe (and the public also tends to believe, I gather) that they are the unique guardians of constitutional values, whereas the members of the FCC see themselves as acting in a dense environment structured by the authority of other actors (courts and Congress in particular). Courts can do this if they choose as well, however.