I have posted the following piece on SCOTUSBlog. It begins:
Scholarship highlight: End of the Supreme Court-Congress dialogue?
Political polarization in Congress seems to be affecting the relationship between Congress and the Supreme Court, inadvertently strengthening the Court at the expense of Congress. These days – unlike in the past – Congress rarely overrides the Supreme Court’s statutory decisions. Yet the same congressional polarization that is strengthening the Court is likely to spill over into the Supreme Court nominations process, greatly increasing the risk of a Senate filibuster when the next conservative Justice leaves the Court.
As I explain in End of the Dialogue: Political Polarization and Congress (forthcoming in Southern California Law Review) (and discussed further in this Adam Liptak Sidebar column in The New York Times), a key premise of the Supreme Court’s decision making is that it has a freer hand in interpreting the meaning of Congressional statutes than in deciding constitutional cases. The paths to overturning a constitutional ruling are nearly insurmountable (constitutional amendment or constitutional convention), but it takes only a simple act of Congress to reverse an errant Supreme Court statutory decision. Under this reasoning, the risk of Court error in statutory cases is not so great because Congress can override the Court when necessary. Indeed, a key 1991 study of overrides by Yale professor William Eskridge found that Congressional overrides happened a lot more than people had thought.
Eskridge was right to note the spike in congressional overrides beginning in the 1970s. But in the last two decades, the number of Congressional overrides has fallen off a cliff. While Congress overturned about twelve cases in every two-year congressional cycle from 1975-1990, by the 2001-12 period, the number had fallen to only 2.8 cases per two-year Congressional period.