“The Court and Congress: The Child Pornography Case”

Rick Pildes on Paroline and congressional overrides:

Initially, the question is whether the Court should try to put Humpty Dumpty back together again:  should the Court construct a version of the law that creates a rough approximation of what Congress might have been trying to do — as Justice Kennedy’s majority opinion did — or should it conclude that Congress has made such a mess, and has provided so little guidance, that the Court should not to try to spin rationality from such little thread but instead throw its hands up and push the issue back to Congress — as CJ Roberts’s dissenting opinion did.

But the even more intriguing question is which way of handling situations like this — the Kennedy or Roberts approach — makes it more likely that the final outcome will be what all eight Justices agree would be best, which is for Congress actually to address these issues.  It’s possible the Roberts approach would make it more likely than the Kennedy approach that Congress would be forced to get back into this area.  Roberts reaches a result that he knows Congress did not intend — that victims get nothing, even though the whole point of the statute was that they ought to get something.  But since that outcome flies so dramatically in the face of the policy we have good reason to believe Congress wants (both the enacting and current Congress), the very extremity of that result perhaps makes it all the more likely that groups will mobilize and be able to move Congress to respond.  And it’s possible Congress might be less likely to respond under the majority’s approach:  Congress might conclude after yesterday that the courts are now in the middle of working things out and might wait to see what the courts manage to do.  And we can now also ask, should the Court take these considerations into account — which way of deciding a case like this makes it more likely Congress will step up — when the Court chooses between the majority and dissenting approaches.

My thoughts on a Paroline override here.


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