Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967-2011

TLDR: In a follow-up study, this paper found that the 1990s was the golden age of federal statutory overrides, with an unprecedented explosion of statutes resetting statutory policy in important ways.

Abstract: Once upon a time, law professors and political scientists assumed that the Supreme Court was, as a practical matter, the final word on matters of statutory interpretation. Although Congress as a formal matter could alter a judicial construction with a statutory amendment, the conventional wisdom was that it rarely did so. In 1991, that conventional wisdom was shattered by one of our's empirical study demonstrating that congressional overrides of Supreme Court statutory interpretation decisions blossomed in the period between 1967 and 1990.* 1 Later that year, Congress enacted the Civil Rights Act (CRA) of 1991, overriding as many as twelve Supreme Court decisions that had significantly cut back on workplace antidiscrimination protections.2Since 1991, legal and political science scholarship has confirmed the importance of federal statutory overrides and has explored their incidence.3 Scholars have also debated what they tell us about Court-Congress interaction, as well as how they have been integrated (or not) into statutory policy and even constitutional norms.4 The override phenomenon has not gone unnoticed among Supreme Court Justices, who periodically invoke this tradition in important cases, including one overridden by the 1991 CRA.5 In June 2013, Justice Ginsburg reminded the Court that "Congress has, in the recent past, intervened to correct this Court's wayward interpretations of Title VII" and importuned Congress to correct the Court once again after its decision in Vance v. Ball State University6 narrowed protections against workplace sexual harassment.7Recently, however, the New York Times claimed that overrides had fallen off dramatically after 1991 and that in the new millennium "[t]he number of overrides has fallen to almost none."8 Responding to this possibility, our current study updates the 1991 Eskridge study, bringing the overrides record forward twenty years (so accounting for overrides 1967- 2011) and improving upon the methodology for identifying overrides, as described in Part I. Like the earlier study, the current one treats as an override any statute that "(1) completely overrules the holding of a statutory interpretation decision, just as a subsequent Court would overrule an unsatisfactory precedent," or "(2) modifies the result of a decision in some material way, such that the same case would have been decided differently," or "(3) modifies the consequences of the decision, such that the same case would have been decided in the same way but subsequent cases would be decided differently."9Contrary to the New York Times and to a 2013 override study by Richard Hasen10 (which was the basis for the Times's claim),* 11 Part II of the current study finds that the 1990s was actually the golden age of overrides, with an unprecedented explosion of statutes resetting statutory policy in important ways. After 1998, however, we found that overrides declined as dramatically as they had ascended, though they have not (yet) "fallen to almost none."Overrides never went away, but the climate for overrides has changed. To appreciate the new era, Part III suggests an important distinction. The most-publicized overrides, such as the 1991 CRA, are what we call restorative overrides: maintaining that the Supreme Court has reneged on historic legislative commitments, Congress "restores" what it considers the correct understanding of the statutory scheme, often the understanding that an agency had implemented before being rejected by the Court. Restorative overrides such as the 1991 CRA are an important phenomenon and include other landmark statutes, such as the Pregnancy Discrimination Act of 1978,12 the Voting Rights Act Amendments of 198213 and the Voting Rights Act Reauthorization and Amendments Act of 2006,14 the ADA Amendments Act of 2008,15 the Lilly Ledbetter Fair Pay Act of 2009,16 and the Family Smoking Prevention and Tobacco Control Act.17 Justice Ginsburg's dissent in Vance urged Congress to restore the proper law for Title VII precisely along these lines. …