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Congressional Responses to Judicial Decisions Neal Devins William & Mary Law School, [email protected]

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Congressional Responses to Judicial Decisions Neal Devins William & Mary Law School, Nedevi@Wm.Edu College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2008 Congressional Responses to Judicial Decisions Neal Devins William & Mary Law School, [email protected] Repository Citation Devins, Neal, "Congressional Responses to Judicial Decisions" (2008). Faculty Publications. 1633. https://scholarship.law.wm.edu/facpubs/1633 Copyright c 2008 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs Confrontation Clause Supreme Court began to backtrack from its previous positions on civ il rights and iss ued five rulings that made it more difficult to prove discrimination under Title VII (employment discri mination) and other statutes . Con­ gress, working in tandem with civil ri ghts groups, crafted legislation that null ifI ed these and other restrictive decisions. By enacting the 199 1 Act, Congress overturned nine Rehnquist C ourt decisions, made it easier for civil ri ghts plaintiffs to bring lawsuits, and became the civi l ri ghts es tablishment's so-called court of last reso rt. CONSTITUTIONAL ISS UES On constitutional questions, there is significant contro­ versy about the scope of Congress's power to respond. The reason for this is tbat the press, the Ameri can people, some members of C ongress, and especially the Supreme Court treat Court constitutional rulings as ftn al and deftnitive. For example, when reporting that six out of ten Americans thought the Supreme Court was the ultimate constitutional arbiter, newspapers simply noted that those six were "correct" (Marcus 1987, p. Al3). Likewise, after Reagan's attorney ge neral, Edwin M eese (1931-), argued that Supreme Court decisions were not " binding on all persons and parts of government henceforth and for­ evermore," the Senate Judiciary Commirtee was alarmed, aski ng Supreme Court nominees to comment on Meese's speech (Meese 1987, p. 983). For its part, the Supreme Court stridently defe nds its power to interpret the Constitution. Beginning with Chief Justice John Marshall's declaration in Marbury v. Madison, 5 U.S. 137 (I803) that it is "emphaticall y rhe CONGRESSIONAL RESPONSE TO province and duty of the judicial department to say what the law is," th e Supreme Court regularly insists that it JUDICIAL DECISIONS alone delive rs the ftnal word on the meaning of the O n both statutory and constitutional ques ti ons, Congress Constitution. According to a subsequent decision, Mar­ has significant power and responsibili ty to res pond to btuy " declared the basic principle that the federal judiciary Supreme Court decisions. O n statutory matters, there is is supreme in the ex position of the law of the no ques tion that Congress may negate a Supreme Court Constitution" (Cooper v. Aaron, 358 U .S. 1 [1958]). In interpretation by enacting new legislation. Consider, for a memorable aphorism, Justi ce Robert H. Jackson claimed example, congressional efforts to countermand Rehnquist that decisions by the Supreme Court "are not ftnal Court interpretations of federal civi l right statutes, the because we are infallible, but we are infalli bl e only because 1987 C ivil Rights Restoration Act, and the 1991 C ivi l we are ftna l" (Brown v. Allen, 344 U.S. 443 [1 953]). Yet, Ri ghts Act. T he 198 7 stature nega ted a 1984 Supreme the historica l record, as well as the text of the Court decision, Grove City College v. lJell, 465 U.S. 555 Constitution, provides overwhelming evidence that Court (1984). Ru li ng that only the parts of the coll ege that pronouncements are anything but fInal. Instead, Court actually received federa l aid were subject to federal civil pronouncements are part of a circular process binding the ri ghts laws (a nd not the coll ege as a whole), Grove City parties in a particular case but othelwise servi ng as one severely limited th e reach of fed eral civil rights protec­ moment in an ongoing constitutional dialogue between tions. T he Restoration Act rejected that interpretation, the courts, elected officials, and the America n people. making clea r that the entire orga nization is subject to T he Constitution, fo r example, anticipates that fede ral civil ri ghts protections when any program or Congress wi ll play an important part in shaping the activity rece ives federal ass istance. Constitution's meaning. All public officers are required by T he 199 1 C ivil l\ights Act is a more dramatic Article VI, clause three " to support this Constitution. " exa mple of Congress's power to res pond. In 1989, th e T hat obligation is supplemented by federal law, under 400 EN C YC LO PEDIA OF THE SUPREME COU RT OF THE UN ITED STAT ES Congressional Response to Judicial Decisions which all legislative officials "solemnly swear (or affirm) ... court decisions on gay marriage, the pledge of allegiance, ro supporr and defend the Constitution" (5 u.s.c. § 3331 the public display of the Ten Commandments, and judicial [1994]). The Constiturion, moreover, anricipates that invocations of international law. None of these statutes was lawmakers will respond to Supreme Coun rulings. It enacted, although limits on court jurisdi ction over same-sex empowers Congress to, among other things, impeach marriage and the pledge of allegian ce were approved by the judges, make exceptions to the jurisdicrion offederal COUITS, House of Representatives in 2004. confirm judicial nominations, and amend the Constiturion In 2005 and 2006, Congress responded ro coun (in conjunction with the states, three-fourths ofwhich must decisions by enacting legislation affecting federal court approve consticutional amendment proposals). Over the jurisdiction. In 2005, Congress expressed disapproval years, Congress has made use of all of these powers to signal with state court decis ion-making in the Terri Schiavo case its approval or disapproval of federal court decisions. by expanding federal coun jurisdiction. Speciflcally, rather In the rwenty-first century it seems farfetched that than accept state court findings that Sch iavo, then in a Congress would impeach federal coun judges to express persistent vegetative state, would rather die than be kept disapproval with court decisions. At the time of Ma rbury v. alive artiflcially, Congress as ked the federal courts to sort Madison, however, Congress seemed quite willing ro use its out whether the removal of a feeding tube violated impeachmenr power to check the federal judiciary. After Schi avo's constiturional rights (For the Relief of the the 1800 elections (where the Jeffersonians rook control of Parents of Theresa Marie Schiavo Act). the White House and Congress from the Federalists), In 2006, Congress limited the habeas corpus rights of Federalist district judge John Pickering (J 737-1805) was detainees held at Guantanamo Bay. Responding ro a impeached and removed, and action against Supreme Supreme Coun ruling Hamdan v. Rumsftld, 548 u.s. _ Court Justice Samuel C hase (1741-1811) began. For this (2006), which extended Geneva Convention protections very reason, the Supreme Court could not iss ue a ro enemy combatanrs, Congress enacted the MilitalY meaningful remedy against the Jefferson administration Commission Act. This statute authori zed limited federal in Marbury v. Madison (a case in which a Federalist judicial court review of military commiss ion determinations that a appointee challenged the Jefferson administration for detainee is an enemy combata nt. More signiflcant, the fililing to deliver his judicial commission ro him). Indeed, Military Commissions Act prohibited federal court C hief justice Marshall was concerned abour impeachment, consideration of habeas corpus petitions by Guanranamo writing ro Justi ce C hase that " a reversal of those legal detainees, limiting their rights to those afforded them by opinions deemed unsound by the legislature would military commissions. When enacting the statute, it is certainly better comport with the mildness of our character unclear whether lawmakers intended ro cou ntermand the than a removal of the judge who has rendered them Hamdan Court or, instead, accepted the Court's invita­ unknowing of his fa ult" (Beveridge 191 9, p. 177). tion ro grant "the Pres ident the legislative authori ry ro create military commiss ions at iss ue here." COURT JURISDICTION Another constiwtionall y authorized mechanism ro countermand Supreme Court decision-making is the Article III, clause rwo makes the Supreme Court'S appellate Article V amendment process. The Eleventh Amendment jurisdiction subject ro "such exceptions" and "such (ratifled in 1795) was a response ro the Supreme Court's regulations as the Congress shall mal<e." On numerous decision in Chisolm v. Georgia, 2 U.S. 4 19 (1793). Chisolm occasions, Congress has threatened ro strip the Court of ruled that states could be sued in federal courts by citizens of jurisdiction in response ro decisions it disli kes. From 1953 another state; the Eleventh Amendment ex plicitly forbids to 1968, Congress saw Court stripping as a way ro such laws ui ts. T he T hirteenth Amendment (ratified in countermand the Warren Court-over sixty bills were 1865) outlawed slave ry and, in so doing, nullifled Dred introduced ro limit the jurisdiction of the federal COUITS Scott v. Sandford, 60 U.S. 393 (1857). Sin ce the over school desegregation, national securiry, criminal Reconstruction, however, Congress has rarely amended confess ions, and much more. And while only one of these the Constitution in response to Court decisions. T hat has bills passed (limiting the access of alleged Communists ro not stopped lawmakers from se ri ously co ntemplating such government documents) , Congress came close ro enacting legislation that would have stripped the Supreme Coun of amendments and constiwtional amendment proposals have been considered in response ro Court decisions on jurisdiction in five domestic security areas.
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