Political polarization in Congress seems to be affecting the relationship between Congress and the Supreme Court, inadvertently strengthening the Court at the expense of Congress. These days – unlike in the past – Congress rarely overrides the Supreme Court’s statutory decisions.  Yet the same congressional polarization that is strengthening the Court is likely to spill over into the Supreme Court nominations process, greatly increasing the risk of a Senate filibuster when the next conservative Justice leaves the Court.

As I explain in End of the Dialogue: Political Polarization and Congress (forthcoming in Southern California Law Review) (and discussed further in this Adam Liptak Sidebar column in The New York Times), a key premise of the Supreme Court’s decision making is that it has a freer hand in interpreting the meaning of Congressional statutes than in deciding constitutional cases. The paths to overturning a constitutional ruling are nearly insurmountable (constitutional amendment or constitutional convention), but it takes only a simple act of Congress to reverse an errant Supreme Court statutory decision. Under this reasoning, the risk of Court error in statutory cases is not so great because Congress can override the Court when necessary. Indeed, a key 1991 study of overrides by Yale professor William Eskridge found that Congressional overrides happened a lot more than people had thought.

Eskridge was right to note the spike in congressional overrides beginning in the 1970s. But in the last two decades, the number of Congressional overrides has fallen off a cliff. While Congress overturned about twelve cases in every two-year congressional cycle from 1975-1990, by the 2001-12 period, the number had fallen to only 2.8 cases per two-year Congressional period.

 

Further, there’s a change in how Congress overturns Supreme Court statutory decisions.  In the past, a congressional override (such as an override of Supreme Court civil rights cases) was likely to garner significant bipartisan support. These days, though, in the rare circumstances when there is a Congressional override, it is more likely than before to be on a partisan basis. Think, for example, of Congressional Democrats banding together to overturn the Lilly Ledbetter decision, or Congrssional Republicans banding together to overturn the habeas corpus decision in Hamdan.

 

 

What explains this shift in both the amount of overrides and the partisanship of overrides? I argue that the steep decline in overrides over the last two decades appears due in large part to increased polarization in Congress and not simply to a decline in the number of Supreme Court statutory interpretation cases or the ideological direction of those cases.  In particular, the steep decline in overrides appears correlated to the loss of moderates (especially moderate Republicans) in Congress. Further, when Congress acts against a Supreme Court decision, it appears to happen more as an ideological reaction to a Court decision when the other two branches are under near unified party control.

Although political polarization has benefitted the Supreme Court’s power relative to Congress in the short term, the longer-term power relations are more uncertain. Aside from the statutory interpretation dialogue, Congress interacts with the Supreme Court in other ways, including through Senate confirmation of Supreme Court judicial nominees. The recent partisan realignment of the Supreme Court (all the conservatives on the Court were nominated by Republican presidents and all of the liberals by Democratic presidents) makes it more likely that a Supreme Court judicial nominee will be filibustered in the Senate, thanks to the increasing willingness of Senators to oppose nominees on ideological grounds and increased partisan polarization in the Senate. Justices can be painted (fairly or unfairly) as “Democratic” or “Republican” Justices in ways they have not before.

The number of Senators from the opposing party of the nominating president voting against Supreme Court nominees is approaching or exceeding the filibuster level.

 

 

Depending upon how the politics plays out in a possible filibuster of a Supreme Court judicial nominee when one of the conservative Justices leave the Court, we may see either an erosion of the use of the filibuster in the Senate or a compromise which would weaken the power of the judiciary, such as term limits imposed upon future Supreme Court Justices.

 

Posted in Academic Round-up, Featured

Recommended Citation: Rick Hasen, Scholarship highlight: End of the Supreme Court-Congress dialogue?, SCOTUSblog (Jan. 29, 2013, 4:23 PM), http://www.scotusblog.com/2013/01/scholarship-highlight-end-of-the-supreme-court-congress-dialogue/