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Scholarship highlight: The conversation has changed but the Court-Congress dialogue continues

In Constitutional Interpretation and Congressional Overrides: Emerging Trends in Court-Congress Relations, a paper that I presented at the 2013 Western Political Science Association’s Annual Meeting, I identified and examined the forty-one acts of Congress nullified during the Rehnquist Court. These forty-one laws represent both the greatest number of federal statutes overturned in any nineteen-year period and the highest rate of judicial activity striking down federal law.  Especially noteworthy, the Rehnquist Court saw 29.3% of its decisions nullifying federal law overridden by Congress. This is a rate of successful overrides that is significantly higher than those cited in studies that focus solely on statutory-interpretation overrides and a rate nearly fifty percent higher than seen in a previous study examining constitutional-interpretation overrides.  Thus, the Rehnquist Court displays an increase in both judicial review and congressional overrides to constitutional-interpretation decisions. These high rates of both nullifications and overrides are indicative of a changing Court-Congress relationship and have important implications for testing and developing theories of judicial-congressional relations.

There are three major trends that emerge from my research: (1) Supreme Court Justices are sitting for increasingly longer terms, providing the president and the Senate fewer opportunities to control the Court through the appointment process; (2) the Court has been significantly more active in nullifying federal law in the last fifty years, with each of the last three Courts more active than the previous; and (3) Congress has modified the impact of these nullifications by overriding these constitutional-interpretation decisions at a rate that is substantially higher than previous studies have identified.

Figure 1 

Emenaker Figure 1

Figure 2

Emenaker Figure 2

Figure 3

Emenaker Figure 3

As shown in the graphs above, when compared with the two preceding it, the Rehnquist Court nullified significantly more federal laws and did so with greater frequency. From 1986 to 2005, the Rehnquist Court struck down an average of 2.16 federal laws per year (see figure 1).  The Court’s overall average of nullifying federal laws since Marbury v. Madison is less than one per year. Prior to the four most recent Courts, the average number of acts of Congress nullified per year was only .44 (see figure 3). This indicates that the Warren Court struck down federal laws at three times the Court’s pre-1953 rate, the Burger Court at four times that rate, and the Rehnquist Court at five times that rate.

Figure 4

Emenaker Figure 4

The period from 1990-1999 had the most federal laws struck down in a single decade with twenty-three (see figure 4). Zeroing in on the eight-year period from 1995-2002, there were thirty-one federal laws invalidated by the Court—by far the most of any eight-year period. During these eight years the Court struck down a record of 3.9 federal laws per year. This is a significantly higher rate compared to historic periods of turmoil between the Court and Congress. For example, from 1930 to 1939, only thirteen federal laws were nullified. The period from 1918 to 1936 – often seen as a time of the greatest conflict between the Court and Congress – saw twenty-nine federal laws overturned. This equates to 1.5 federal laws struck down per year, a rate that is lower than what occurred during either the Burger or Rehnquist Courts.


Emenaker Table 1

In 1957, Robert Dahl observed that on average a new Justice was appointed every twenty-two months. Based on this turnover rate, Dahl viewed President Roosevelt’s four-year wait to nominate his first Justice as unusually bad luck.  For Dahl, this extended and unlikely interval helped explain the 1930s rift between the elected and appointed branches of the federal government.  President Roosevelt’s “bad luck” is now the norm. The average term for all Justices appointed since 1940 is 16.6 years (see table 1). The average term for Justices appointed after 1950 jumps to 20.3 years. This trend is even more pronounced when looking at Justices appointed since 1970, an unprecedented 25.17 years.

Since 1970, a new Supreme Court Justice has been appointed, on average, every thirty-three-and-a-half months. This is a fifty percent increase over the first 167 years of the Court. The “lag time,” the interval of time Dahl described before current majorities could reshape the Court, is now significantly longer.  Based on Dahl’s theory, the Court will more often be out of touch with current electoral majorities.

The “continuing dialogues” model asserts that the Supreme Court does not have the final word in interpreting the Constitution; under this model, the Court engages in “dialogues” with other political actors to shape constitutional interpretation.  If the Court is being more assertive in striking down acts of Congress based on the Justices’ interpretation of the Constitution, then a logical conclusion under the “continuing dialogues” model is that Congress will respond to these decisions and try to modify them. This in fact seems to be the case. Of the forty-one federal laws overruled during the Rehnquist Court, twelve were overridden by Congress. This represents 29.3% of all constitutional cases eligible for an override. This is an almost ten percent higher rate (or a fifty-percent increase in the percentage of overrides) than found in Joseph Ignagni’s and James Meernik’s study of constitutional-interpretation overrides from 1954-1990 (which includes the first five years of the Rehnquist Court). This seems to indicate that, as the Court became more active, so did Congress. In nearly one out of three cases, when the Rehnquist Court struck down a federal law, Congress did not accept this as the final word and the constitutional dialogue continued.

The number of successful overrides during the Rehnquist Court highlights only part of the post-judicial review interaction between the Court and Congress. In fact, of the forty-one federal laws nullified by the Rehnquist Court, only fourteen failed to generate an override bill. Thus, even in cases where override legislation failed to become law, Congress was expending effort on overriding Court decisions that nullified federal law.

Some of the congressional overrides to the Rehnquist Court could best be described as being “invited.” For example, in Thomson v. Western States Medical Center, the Court struck down commercial speech restrictions as “more extensive than necessary to serve” the government’s interest. The decision did not foreclose all future commercial speech restrictions; rather, it offered boundaries for new restrictions. Judicial invitations indicate that not all legislative overrides modifying the results of a Court decision indicate hostility between the two branches.

In other instances, the Court has been overridden without inviting a congressional response. In Dickerson v. United States, the Chief Justice’s opinion for the Court stated that “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.”  Despite that admonishment, this is precisely what Congress had done, and for thirty-two years Congress’s interpretation of the Constitution stood as the final one. The Court-Congress dialogue started in 1966, when the Supreme Court ruled in Miranda v. Arizona that the accused had a right to be informed of their constitutional rights. Two years after that decision, Congress passed the Omnibus Crime Control and Safe Streets Act (OCCSSA) of 1968, which included an override of the Miranda decision. In this instance Congress’s interpretation of the Constitution, one that directly overrode the Court’s interpretation, was final for thirty-two years. If Congress truly cannot legislatively supersede Court decisions, it is a wonder it took the Court thirty-two years to assert its authority.

If Congress is increasing its rate of constitutional-interpretation overrides in reaction to increased Court activity, then this is a sign of Congress shifting its constraints on the Court from before-the-fact appointment controls to after-the-fact overrides of Court decisions.

The current Chief Justice, John Roberts, is the youngest appointee to the Court in two hundred years.  As of the end of President Obama’s first term, the Justices on the Court who were appointed before 2005 are serving for an average of 25.6 years, and this average seems likely to increase in the future. The Roberts Court has already stuck down nine acts of Congress in its first six years, an average of 1.5 per year, placing it at nearly twice the rate of the Court’s average for all of its history. Congress for its part nearly passed an override to the Court’s decision in Citizens United v. Federal Elections Commission and has entertained bills for others. The three trends identified in this study seem likely to continue and should feature prominently in future theories on Court-Congress relations.


Recommended Citation: Ryan Emenaker, Scholarship highlight: The conversation has changed but the Court-Congress dialogue continues, SCOTUSblog (May. 3, 2013, 12:52 PM),