Shorter Supreme Court in Child Pornography Case: Congress, Please Override Us

Today the Supreme Court decided a statutory interpretation case, Paroline v. U.S. with no easy answer, an unusual cross-ideological divide among the Justices, an interpretation offered by the majority which Adam Liptak rightfully describes as “a new and vague legal standard,” and a Chief Justice in his dissenting opinion begging Congress to fix the problem (“The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.”). Even though Congress rarely overrides Congress these days, I predict an override in this case, and probably relatively quickly.

As Adam explains the facts, “The 1994 law allows victims of child pornography to seek the ‘full amount’ of their losses from people convicted of producing, distributing or possessing it, and Amy asked the United States District Court in Tyler, Tex., to order Mr. Paroline to pay her the full $3.4 million [of her losses].” The majority in an opinion by Justice Kennedy said that was too much, and sent the case back for some kind of uncertain undertaking of the amount of damages; the Chief Justice (joined by Scalia and Thomas, but not Justice Alito) in dissent said the standard was unworkable and the proper amount was zero until Congress fixes the statute for others, and Justice Sotomayor, for herself only in dissent would have allowed for the full amount of damages awarded in the lower court.

The case is fascinating to me as someone who teaches both Torts and Remedies. (It’s not every day that you get the Justices on the Court opining on the difference between actual and proximate cause, citing the Restatement (Third) of Torts, and discussing the concept of independent concurrent causation.)

But thinking about this from the point of view of Legislation, this seems the ideal case for a Congressional override.  As I’ve noted in a recent law review article, Congress now rarely overrides the Court, and when it does, there tend to be partisan overrides (as when Republicans overrode the Supreme Court in cutting back habeas for detainees in Hamdan or when Democrats overrode the Supreme Court in allowing more employment remedies in Ledbetteri).  I attribute the decline of bipartisan overrides to increasing political polarization in Congress.  (Christiansen and Eskridge are skeptical of the partisanship point, and reach somewhat different conclusions using very different methodology.  I will blog more about that at some point.)

But even in an era of intense partisanship, as we are in right now, there is room sometimes for biparisanship, and this looks like the perfect opportunity for two reasons. First, everyone hates child pornographers and wants to look tough on crime. Unless Congress is satisfied with the vague standard of the majority, it could look good for all of Congress to get tougher than the Court was willing to be on child pornographers—particularly when the Court’s ruling means that many victims are undercompensated.  (Marci Hamilton offers a suggestion for what new congressional legislation could look like.)

Second, though related to the first point, taking a stand in favor of fixing the statute won’t be seen as going up against the Supreme Court.  If all the conservatives were on one side and all the liberals on the other in a 5-4 decision, then an override of a Supreme Court statutory case looks like an attack on one wing of the Court.  Here, you have a case with a cross-ideological majority throwing up its hands as to an administrable rule, and three of four dissenters asking Congress to step in.

In an era where Congress can do so little thanks to ideological polarization, a new Amy Act looks to be a no-brainer.

UPDATE: Much more on what Congress can do from Paul Casell, Amy’s lawyer.

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