I have just posted a revised and updated version of this article (forthcoming Southern California Law Review) on SSRN. (The article was recently the subject of this Adam Liptak “Sidebar” column in the NY Times.) Here is the revised abstract:
This Article considers the likely effects of continued political polarization on the relative power of Congress and the Supreme Court. Polarization already is leading to an increase the power of the Court against Congress, whether or not the Justices affirmatively seek that additional power. The governing model of Congressional-Supreme Court relations is that the branches are in dialogue on statutory interpretation: Congress writes federal statutes, the Court interprets them, and Congress has the power to overrule the Court’s interpretations. The Court’s interpretive rules are premised upon this dialogic model, such as the rule that Supreme Court statutory interpretation precedents are subject to ‘super strong’ stare decisis protection because Congress can always correct an errant court interpretation. Legislation scholars also write as though congressional overriding remains common.
In fact, in the last two decades the rate of Congressional overriding of Supreme Court statutory decisions has plummeted dramatically, from an average of 12 overrulings of Supreme Court cases in each two-year Congressional term during the 1975-1990 period to an average of 5.8 overrides for each term from 1991-2000 and to a mere 2.7 average number of overrides for each term from 2001-2012. Although some of the decline seems attributable to the lower volume of Supreme Court statutory interpretation decisions, the decline in overridings greatly outpaces this decline in cases. Instead, partisanship seems to have strongly diminished the opportunities for bipartisan overridings of Supreme Court cases, in which Democrats and Republicans come together to reverse the Supreme Court.
In its place we see a new, but rarer, phenomenon, partisan overriding, which appears to require conditions of near-unified control of both branches of Congress and the presidency. The two recent examples are the Military Commissions Act of 2006, in which Republicans overturned the Court’s statutory interpretation decision in Hamdan v. Rumsfeld on the habeas corpus rights of enemy combatants, and the Lilly Ledbetter Fair Pay Act of 2009, in which Democrats overturned the Court’s statutory interpretation decision in Ledbetter v. Goodyear Tire & Rubber Company on how to measure the statute of limitations period in certain employment discrimination lawsuits. In a highly polarized atmosphere and with Senate rules usually requiring 60 votes to change the status quo, the Court’s word on the meaning of statutes is now final almost as often as its word on constitutional interpretation.
Although political polarization has benefited the Supreme Court’s power relative to Congress in the short term, the longer term power relations are more uncertain. Aside from the statutory interpretation dialogue, Congress interacts with the Supreme Court in other ways, including through Senate confirmation of Supreme Court judicial nominees. The recent partisan realignment of the Supreme Court makes it more likely that a Supreme Court judicial nominee will be filibustered in the Senate, thanks to the increasing willingness of Senators to oppose nominees on ideological grounds and increased partisan polarization in the Senate. The number of Senators from the opposing party of the nominating president voting against Supreme Court nominees is approaching or exceeding the filibuster level. Depending upon how the politics plays out in a possible filibuster of a Supreme Court judicial nominee, we may see either an erosion of the use of the filibuster in the Senate or a compromise which would weaken the power of the judiciary, such as term limits imposed upon future Supreme Court Justices.
Part I of this Article demonstrates that despite the model of Congress-Court dialogue, and Supreme Court statutory interpretation tools premised on dialogue, congressional overridings of Supreme Court statutory interpretation precedents have become exceedingly rare. The effect of this change is to empower the Court over Congress. Part II argues that the steep decline in overridings over the last two decades appears due in large part to increased polarization in Congress and not simply to a decline in the number of Supreme Court statutory interpretation cases. When Congress does override a Supreme Court case, it is now more likely to be a partisan overriding, pushed through in periods of unified government. Part III is more speculative. It considers how polarization in Congress and the partisan realignment of the Supreme Court — a Court in which all the conservative Justices are Republicans and all the liberal Justices are Democrats — may eventually lead to a major confrontation in Congress over the power of the Senate filibuster. That confrontation may leave the Senate, the Supreme Court, or both, looking very different than they are today. Furthermore, partisan realignment has the potential to harm the Supreme Court’s legitimacy in a way which we have not witnessed in modern times.