Academic highlight: Congressional overrides of Supreme Court decisions
on May 30, 2014 at 2:56 pm
In 1991, Professor Bill Eskridge published a landmark empirical study showing that Congress frequently overrode the Supreme Court’s statutory interpretation decisions. Eskridge’s findings, which surprised almost everyone at the time, support the now well-accepted conclusion that the Court and Congress are in constant dialogue with each other, meaning that neither institution can claim the last word on statutory meaning.
Then, in 2013, Professor Richard Hasen updated Eskridge’s study and found that over the last two decades “the number of Congressional overrides has fallen off a cliff.” Hasen’s study revealed that between 2001-12, Congress managed to override only 2.8 cases per cycle, far fewer than Eskridge’s findings of an average of twelve overrides in every two-year congressional cycle between 1975-1990. In his article, as well in a SCOTUSblog post describing his findings, Hasen speculated that the “dialogue” between the Court and Congress may be coming to an end.
Not so fast, says Eskridge. Eskridge and his co-author, Matthew Christiansen, have published a new empirical study of congressional overrides in which they take issue with some of Hasen’s data and conclude that reports of the Court-Congress dialogue’s death may have been greatly exaggerated.
Contrary to Hasen, Christiansen and Eskridge found that the 1990s were the “golden age” of overrides, in which an “unprecedented explosion of statutes reset statutory policy in important ways.” Their different empirical findings are due to a difference in methodology. Hasen used congressional committee reports to identify overrides, which was the same source Eskridge used in his original 1991 study; Christiansen and Eskridge also relied on these reports, but supplemented their data with Westlaw research. Using these sources, Christiansen and Eskridge found that the 102nd through the 105th Congresses (1991-1999) overrode eighty-six Supreme Court decisions, averaging more than twenty per Congress, and that many of these overrides were on major questions of public policy. Hasen responds that he chose to examine legislation in which Congress consciously chose to override the Court, not legislation in which Congress inadvertently did so, which is why he only discussed overrides that were specifically referenced in committee reports.
In any case, the dispute over the number of overrides in the 1990s may not ultimately be that important, since Christiansen and Eskridge agree with Hasen that overrides have declined significantly since 1998. Christiansen and Eskridge also agree with Hasen that the downturn is likely the result of partisan polarization in Congress, though they view it as a short-term phenomenon that is unlikely to last for much longer. They write that “countervailing pressures from interest groups, agencies, and the states ought to press Congress to update aging superstatutes, with the result being a resurgence of overrides” in the future. Thus, their most significant disagreement with Hasen is whether the recent decline of congressional overrides suggests a permanent shift in the relationship between the Court and Congress, or merely a temporary disruption of an ongoing dialogue between the branches.
Perhaps most interesting for those who want to know just how permanent any Supreme Court statutory interpretation decision will be, Eskridge and Christiansen list a series of variables that they see as correlated with the likelihood of a statutory override (though not necessarily the cause of that override):
• Close division (plurality or five- or six-Justice majority) among the Justices when deciding the case;
• Judicial rejection of the interpretation offered by a federal agency and usually defended by the Solicitor General;
• Judicial narrowing of federal regulation, except in tax and intellectual property cases, where regulation-friendly interpretations are often overridden;
• Reliance on plain meaning of statutory texts, especially when such reliance depends critically on whole act and whole code arguments or flies in the face of strong legislative history; and
• Invitations for Congress to override, issued by a majority, concurring, or even dissenting Justices.
Eskridge and Christiansen also note that another “surprising” finding of their study is that “discrete and insular” minorities, as well as women, seem to fare better in the legislative process than the judicial one, leading to overrides of Court decisions that undermine their interests.
Eskridge and Christiansen avoid making predictions about overrides of specific decisions. But they note that the Court’s five-four decision in Vance v. Ball State University (2013), which narrowed protections against workplace sexual harassment, is a likely candidate for congressional override. In dissent, Justice Ginsburg noted that “Congress has, in the recent past, intervened to correct this Court’s wayward interpretation of Title VII,” and urged Congress to do so again. If the Court-Congress dialogue is alive and well, we may see an override of that decision in the near future.