Reply With QuoteYou know, some people actually think that the Supreme Court, as an unelected body, wields too much power.
http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.3920:/
The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court--
(1) if that judgment is handed down after the date of the enactment of this Act; and
(2) to the extent that judgment concerns the constitutionality of an Act of Congress.
You know, some people actually think that the Supreme Court, as an unelected body, wields too much power.
Man, what would happen if this bill passes and the SC judges it unconstitutional?
And those people can go and amend the Constitution if they want to override the SC.Originally Posted by Reeko
But that's the entire point of checks and balances. The members of the Supreme Court are unelected, but they are nominated by the President (an elected official) and confirmed by Congress (a shitload of elected officials).
It's not like some drug junta installed them at gunpoint or something and rammed them down the American People's (TM) throats.
Oh my....God.
I thought this was a joke at first.
I imagine the sponsors introduced it for public consumption at home, knowing full well it'll never see the light of day.
Eugene Volokh raises some interesting questions about its actual implementation:
Congress reversing judgments of the Supreme Court: A bunch of people have e-mailed me about this bill:
The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court--
(1) if that judgment is handed down after the date of the enactment of this Act; and
(2) to the extent that judgment concerns the constitutionality of an Act of Congress.
I'm pretty sure that this is unconstitutional, under current legal doctrine. Of course, if Congress enacts this and then stares down the Supreme Court when the Court strikes it down -- for instance, if a majority of the public will be on its side -- perhaps Congress will win, and current doctrine will thus be changed. I doubt, though, that this will ever be enacted, or that the people will side with Congress rather than the Court here (setting aside whether they should).
But I want to ask a different question: Let's say that this does indeed get enacted and validated -- for instance, assume for the sake of argument that it's implemented as a constitutional amendment. How does Congress expect even obedient judges to abide by its "revers[als]"?
Assume that the Court strikes down an abortion ban, based on some legal argument and legal precedents that the Justices would find persuasive (e.g., the right to privacy, and Casey). Congress reverses the judgment. The judgment will thus no longer be effective; the parties to the case would be free of it. But then someone else files a similar though not identical challenge to the same law.
Presumably the Justices would still find persuasive the same argument and precedents they found persuasive in the first case. True, the first decision was reversed -- but the arguments underlying it and the precedents supporting it still remain. The right of privacy, as defined by Casey, still leads the Court to think that the abortion ban is inconsistent with that precedent. Why should the Court do anything but strike the law down, at least so long as there's any conceivable distinction between this case and the preceding one (for instance, this challenge is an as-applied challenge applied to different facts, or this challenge is brought by a litigant who has a subtly different interest, and so on)? After all, the Congressional veto didn't purport to wipe off the books the preexisting precedents; it only reversed one particular Supreme Court judgment. So the Congressional veto might not be terribly effective -- again, even if the Justices really do want to obey the veto process.
Ah, you might say, the Court should defer to the Congressional judgment as a precedent itself, albeit one set by Congress and not the Court, and say "We won't strike the law down, because of this new precedent set by Congress." But, at least these days, courts don't just view the result of a case as a precedent; they apply the reasoning of the case.
The Congressional reversal includes no reasoning; it's doubtless based on legislators' reasoning, but the reasoning doesn't appear in the Congressional action (or at least nothing in this proposed statute suggests that it would). Did the Congress reverse the decision because it thought all abortion bans were permissible? Just this particular abortion ban? Just this particular abortion ban as applied to this particular litigant? The Court would have no clear way of telling this, except through guesswork. The Justices really couldn't apply the Congress's decision as a precedent even if they wanted to. (There is one potential analogy here: When the Court had a practice of summarily affirming lower court decisions without opinions, the theory was that lower courts at least should abide by that result in logically indistinguishable cases, but weren't bound by it otherwise; but that also proved not to be very helpful to courts, and the Supreme Court itself felt much less bound by its past summary affirmances than it was by its past reasoned opinions.)
Now this isn't an insuperable problem. Perhaps this statute could be modified to also have Congress give its justifications for the reversal, though you might often have a hard time getting a majority of the reversal's supporters endorsing a single justification (except when it's so vague as to be not very helpful). Or perhaps a Congressional veto of a Court decision striking down a statute might automatically mean the statute is per se validated against all future challenges, though that would pose its own problems. But the current proposal strikes me as procedurally troublesome as well as politically unlikely to be enacted.
I'm surprised Volokh wrote that, because he's a really smart guy. The problem he's postulating would never occur, I don't think. Courts routinely interpret acts of Congress (i.e., laws) and sometimes have to dig into Congress' reasoning to do so. There's an entire body of law regarding "statutory interpretation," and the courts have no problem delving into the Congressional mind if they have to. They read the floor debates, they read the history of the legislation (how it was proposed, how it was amended and why, etc.), they read position papers put into the record by the legislators themselves. I see no reason to believe that a reversal of the USSC would be passed with any less debate than any other law. I don't think the USSC (or lower courts) would have any insurmountable problem interpreting a Congressional reversal.
For example, as someone pointed out above, the people of the United States already possess a de facto reversal power: they can amend the Constitution. If the people decide that a certain abortion decision was a bad one, and they feel really strongly about it, they can simply amend the Constitution to have new language about abortion or the right to privacy, and all United States courts are bound by that language. Courts interpret the Constitutuion and what it means--often by getting into the heads of the Congress who wrote the language--all the time. This thing would be no different.
(Note: This is all aside from whether it would be a good idea to have this law in the first place. IMO, it definitely would be a bad idea. It's one of the most ridiculous things I've ever read, and I'm sure the USSC would say it's unconstitutional. There are precedents going back hundreds of years that deliniate the USSC's right to say what the constituion means. If the USSC struck down the law as I expect they would, the country would potentially be plunged into a constitutional crisis. I assume the courts would side with the USSC, but there are probably some courts that would not on certain issues. What a disaster that would be.)
Wow, that's a really good point. You should mail that to him. I bet he'd respond to it.I'm surprised Volokh wrote that, because he's a really smart guy. The problem he's postulating would never occur, I don't think. Courts routinely interpret acts of Congress (i.e., laws) and sometimes have to dig into Congress' reasoning to do so. There's an entire body of law regarding "statutory interpretation," and the courts have no problem delving into the Congressional mind if they have to. They read the floor debates, they read the history of the legislation (how it was proposed, how it was amended and why, etc.), they read position papers put into the record by the legislators themselves. I see no reason to believe that a reversal of the USSC would be passed with any less debate than any other law. I don't think the USSC (or lower courts) would have any insurmountable problem interpreting a Congressional reversal.
Done. I hope he responds. He's way smarter than me, so I feel like I must be missing something.
Love the sponsors of this particular gem of legislature. Almost all of them are Republicans from the Deep South bible belt or the wackjob rural western districts. There's some great wingnuts in there, such as my main main Coble (R-NC) who once defended the US internment of Japanese-Americans during WW2-and went on to chair a subcomittee on homeland security. Wheeee!
Anyway, what better way to continue to consolidate power into the executive branch than by passing a bill that allows Congress to overturn a SCOTUS ruling. All they have to do is either A) get a supermajority (very hard) or B) cornhole incumbents during election years through mass media distortion of an issue (like the war vote in 2002).
Anyway, rest assured this is an attempt to squelch women's and GLBT rights. "If the SCOTUS won't rule against, by golly we'll get Congress to" is probably their thinking.
The universe explodes.
Wow, that was fast. A little too fast, I think. Here's the complete text of my email and his response:
Kind of a non-answer as far as I'm concerned, although maybe that's my fault for writing like ten lines before I got to my actual point. But his answer is just "there's nothing in the text to tell the courts what to do," to which I'd repeat my point that although that's true, there's plenty of stuff in the legislative history to tell them what to do (or, looked at from the other way, a lot of times the text of a law does not tell the courts how to handle a particular case, and they manage to fashion an interpretation anyway).
Um.
I was so tickled by my idea that you should mail your objection to Volokh that I just went ahead and did it myself. It took him like 2 minutes to respond. He said he was too busy to comment, but then went ahead and responded a little anyway:
I have no idea how truly notorious those 'notorious problems' are, but there you go.Sorry, swamped, have to pass -- but the very short answer is
that there are notorious problems with trying to dig into Congress's
reasoning behind the decision (among other things, because there is
often some *Congressmen's* reasoning, but reasoning that might not be
shared by other legislator), which is why courts have been shifting more
and more to trying to focus on the plain text, and calling on the
legislative history as just a fallback.
Just saw Volokh's other response. The only thing I think we can conclude from the two arguments is that he likes me better.
Rywill-
Congress is *much* more vulnerable to executive pressure than the Supreme Court. Again, go look back at the 2002 election cycle and the power play that was done by the administration to the the congressional opposition.
Whereas the SCOTUS doesn't care about relection, or what their vote will mean to their constituency. They are there for life (for better or for worse) unless they are impeached and removed from the bench.
Well to answer your question, giving the President the ability to overturn USSC decisions would be a better way to consolidate power in the executive.
And really, who can blame him?
My impression is that they're not as notorious as he's making them out to be, but he probably has a wider view of the situation than I do. The shift away from interpretation to plain text has been based not so much on "We can't figure this crap out" as "We need to be consistent, and this is the best way to do it." Scalia and his alter-ego Thomas, and also Rhenquist, are huge proponents of just reading the text and assuming it means what it says. Which I am also very much in favor of. But the fact remains that Congress often (perhaps deliberately) passes laws that require interpretation beyond the mere words on the page, and that courts then go to the Congressional Record to assist in the interpretation. If Volokh's point is "These congressional reversals will probably be extremely bare and will always require extensive interpretation," I agree with him, and I agree that that's a bad thing. But that wasn't what he was saying in the original quote--he was saying there wouldn't be any interpretation, and the laws would be ineffective.
IOW, the argument seemed to be that the courts hate doing interpretations of congressional intent, so the courts would just ignore a congressional reversal in future cases, rather than going through the trouble of trying to interpret it. I think that's not at all true. They might ignore it because it's unconstitutional, but they wouldn't ignore it just because it's too much work, or too chancy, to interpret it. I've never, ever heard of a court just throwing up its hands like that.
I think I just thought of a better explanation for what Volokh is saying: that courts hate doing the interpretation, so they will just hold the law to its literal face--"Decision X is reversed"--and not bother to apply it to other cases or investigate the reasoning behind it. And that's actually a plausible argument. Essentially, courts would be saying to Congress, "If you want to pass a general law that is applicable nationwide, go ahead. But this law, by its terms, applies only to the decision we made back on [whenever]." In other words, if the Congress gives them an easy way to say a particular law isn't applicable to this case, they'll take it. They don't always (or even usually) do that, but they might if they thought the law was an incredible pain in the ass, and insulting to boot, and would also force them to render a decision opposite to what they would like to do.
Edit: Interesting extra consitutional issue--even putting aside the problem of separation of powers, would the law be constitutional? Let's say the courts decide that it is okay, in theory, for Congress to overrule a USSC decision. So at some point the USSC decides something and Congress overrules them. It might not be constitutional for Congress to intervene in a particular case that way.
For example, it's clearly unconstitutional for Congress to pass a law saying that a particular person has broken the law (e.g., "Congress, by Act, decrees that John Smith is guilty of perjury."). Such laws (called "bills of attainder") were within the power of old British courts but are specifically outlawed in the Bill of Rights. Similarly, I think it's reasonably clear that Congress can't pass a law absolving someone of a crime (e.g., "Congress, by Act, decrees that John Smith is not guilty of perjury") either. That power is vested in the executive, in the form of the presidential pardon. From those, I think there's a good arugment that Congress has no power to decree the outcome of a federal civil suit, either.
But is the bar set too high for overriding a decision by the SC? To amend the Constitution, you have to get supermajorities in both the House and Senate, as well as 3/4 of states to ratify. Theoretically possible, but impossible in practice. So, you've got one of the branches whose final word is indeed final. I don't know if that's good.
I dunno about that. If, as some have pointed out here, this is a comspiracy by the Bible-thumpers who want to legislate morality, they managed one only about 70 years ago with Prohibition. Got that sucker passed, ratified, and enacted even against the will of the people. So while I hope you're right about it being nigh-impossible, there's a good example where it wasn't. :cry:
Er... it has happened 27 times, you know.
routlaw- But the Supreme Court is put into place by the executive branch.
Anyway, this law is ridiculous. It's hugely unconstitutional, redundant from a checks and balances standpoint(legislative already has amending the Constitution. With this law in place, there's really no need to ever amend), and a pretty blatant attempt to stop gay marriage and/or abortion.
Also, if passed and struck down by SCOTUS, the feedback loop would bring our government to a standstill.
And only 12 times since in the last 130 years and only once after 1971. And even that one was a minor housekeeping issue, not some sort of check on SC authority.
Posting Permissions