Amanda Frost writes at SCOTUSBlog about Christiansen and Eskridge, Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967–2011 (Texas Law Review). My earlier coverage is here; and I will be writing a response with Jim Buatti for the Texas Law Review because the authors take on my End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review 205 (2013).
Here is a snippet from Amanda’s analysis;
Contrary to Hasen, Christiansen and Eskridge found that the 1990s were the “golden age” of overrides, in which an “unprecedented explosion of statutes reset statutory policy in important ways.” Their different empirical findings are due to a difference in methodology. Hasen used congressional committee reports to identify overrides, which was the same source Eskridge used in his original 1991 study; Christiansen and Eskridge also relied on these reports, but supplemented their data with Westlaw research. Using these sources, Christiansen and Eskridge found that the 102nd through the 105th Congresses (1991-1999) overrode eighty-six Supreme Court decisions, averaging more than twenty per Congress, and that many of these overrides were on major questions of public policy. Hasen responds that he chose to examine legislation in which Congress consciously chose to override the Court, not legislation in which Congress inadvertently did so, which is why he only discussed overrides that were specifically referenced in committee reports.
In any case, the dispute over the number of overrides in the 1990s may not ultimately be that important, since Christiansen and Eskridge agree with Hasen that overrides have declined significantly since 1998. Christiansen and Eskridge also agree with Hasen that the downturn is likely the result of partisan polarization in Congress, though they view it as a short-term phenomenon that is unlikely to last for much longer. They write that “countervailing pressures from interest groups, agencies, and the states ought to press Congress to update aging superstatutes, with the result being a resurgence of overrides” in the future. Thus, their most significant disagreement with Hasen is whether the recent decline of congressional overrides suggests a permanent shift in the relationship between the Court and Congress, or merely a temporary disruption of an ongoing dialogue between the branches.