Matthew Christiansen and Bill Eskridge have posted this draft on SSRN (forthcoming Texas Law Review). Here is the abstract:
In 1991, one of us published a groundbreaking study demonstrating that Congress frequently overrides Supreme Court statutory interpretation decisions. The intervening two decades have shed light on the phenomenon of congressional overrides as numerous scholars have turned their attention to the override process. The 1991 study and subsequent scholarship have shown that overrides are a critical component of the Congress-Court dialogue in statutory interpretation cases. A recent article in the New York Times, however, announced that congressional overrides declined significantly after 1991, and all but dried up in the new millennium. That assertion cast serious doubt on Congress’s future role in the statutory interpretation dialogue with the Supreme Court. In this study, the authors show that, contrary to the reports in the New York Times and elsewhere, congressional overrides did not decline during the 1990s. Quite the opposite. That decade was a “golden age” of overrides in which Congress displaced many more Supreme Court statutory interpretation decisions than the decades prior. The authors further show that, although overrides have fallen off since 1999, they remain an important part of the legal landscape.
Altogether, the authors identify 276 Supreme Court statutory decisions overridden by Congress between 1967 and 2011 — some of which have been overridden multiple times. These overrides are focused overwhelmingly on federal procedure and jurisdiction, criminal law, civil and political rights, bankruptcy, tax, and intellectual property. The majority of overrides are motivated not by a desire to rebuke an errant Supreme Court decision, but instead by the perceived need to update public policy. Empirically, the authors demonstrate that a few key characteristics of a Supreme Court statutory decision — a closely divided Court, a loss for an administrative agency, a finding of plain meaning based upon the whole act or whole code canons, and an invitation or plea for Congress to Act — make the decision much more likely to be overridden than the average statutory decision.
As a normative matter, the authors argue that congressional overrides serve valuable public purposes, for they represent democratically legitimate policy updates and contribute to both good public policy and even the predictable operation of the rule of law. The authors suggest a variety of doctrinal implications courts and agencies ought to heed to capture these normative values. The last section of the Article proposes a series of institutional reforms that Congress, the President, and the Supreme Court ought to consider in the face of the last decade’s decline in overrides. In particular, they focus on how, under the Supreme Court’s deference regimes, the decline overrides is likely to shift policymaking authority to the executive branch.
I’m really looking forward to reading this because the NYT report referred to in the abstract is this piece by Adam Liptak discussing my research, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review 205 (2013).