Ryan Emenaker has posted this draft on SSRN. Here is the abstract:
National policy is shaped through frequent interaction between the Court and Congress. The Court devotes the largest portion of its work to applying and interpreting congressional statutes. Congress considers these interpretations in future legislation. The Court’s use of judicial review to nullify acts of Congress is one of the most contentious aspects of this relationship. However, the interaction that occurs after judicial review is often ignored. When trying to understand Court-Congress relations, it is important to note Congress often overrides Court decisions. Historically the Court rarely rules against Congress. From 1791-2010 the Court nullified just 167 acts of Congress — an average of less than one-a-year. However, this type of interaction has rapidly increased. Nearly 60 percent of all federal laws struck down have occurred since 1960. The Rehnquist Court alone is responsible for nearly 25 percent of all nullified federal laws. Understandably, the rapid acceleration in judicial activity has renewed fears of an imperial judiciary. These fears are partly based in the incorrect assumption that policy development ends with judicial review. The results of this study indicate that as the Court has become more active in striking down congressional acts, Congress has increasingly resorted to overriding these decisions. This study also indicates that increased instances of judicial review suggest changing trends in Court- ongress relations rather than signifying judicial finality.
As I told Professor Emenaker, he’s using the term “override” differently than both Bill Eskridge and I do in our work on overrides. When Congress responds to a constitutional holding of the Supreme Court by passing a statute which does not amend the Constitution, I would not count that as an override.
I just received reprints of my piece on statutory overrrides, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review 205 (2013).