Jim Buatti and I have posted this draft on SSRN (forthcoming, Texas Law Review See Also). Here is the abstract:
In a pathbreaking 1991 study of congressional overrides, Yale law professor William N. Eskridge found a rise during the 1970s and 1980s in the number of times that Congress consciously overrode Supreme Court interpretations of congressional statutes. As Eskridge explained his focus on deliberate congressional action, the term “override” does not “include statutes for which the legislative history — mainly committee reports and hearings — does not reveal a legislative focus on judicial decisions.” Replicating Eskridge’s methodology and updating the Eskridge study through 2012, we found that the number of conscious congressional overrides of Supreme Court statutory interpretations had fallen markedly after 1991 and had slowed during the Obama presidency to a trickle. The Hasen study suggested that increased party polarization in Congress was responsible for the decline in overrides since the Eskridge study, as well as for the shift from bipartisan overrides to more partisan overrides. Now, in a fascinating and wide-ranging study published in the Texas Law Review, Matthew E. Christiansen and Professor Eskridge disagree with some of the conclusions of the Hasen study, both on the extent to which overrides have declined in the 1990s and also whether political polarization will likely keep the number of overrides low for the foreseeable future during periods of divided government.The Christiansen-Eskridge study offers important and counterintuitive insights on the nature of congressional legislation enacted following Supreme Court statutory interpretation. However, as well explained by Professor Deborah Widiss in her perceptive analysis, the Christiansen-Eskridge study has shifted the meaning of “override” compared to the earlier Eskridge and Hasen studies. Instead of a study of conscious overrides, the Christiansen-Eskridge study uses new methodology to study cases in which congressional action consciously or unconsciously changed the understanding of a congressional statute as the Supreme Court had interpreted it. While unconscious overrides can be important to study for many reasons, they are less relevant for purposes of studying the Congress-Supreme Court dialogue.
Importantly, however, the Christiansen-Eskridge methodology also provides a much better way of identifying conscious overrides than the methodology used in either the original Eskridge or Hasen studies, and it has led us to add 25 additional conscious overrides to the 1991-2012 period of the Hasen study. Nonetheless, looking only at conscious overrides identified in the Hasen study and augmented by the later Christiansen-Eskridge study, we conclude that the Christiansen-Eskridge study mostly supports the two main claims of the Hasen study: (1) conscious overrides are on the decline, precipitously so in recent years and (2) partisan polarization is to blame.
This short Response makes four points. First, for purposes of measuring Congress-Supreme Court relations, it makes sense to limit a study of overrides to conscious overrides. Second, the Hasen study and Christiansen-Eskridge study, while differing in their particulars, are consistent in finding a marked decline in conscious overrides, especially during the Obama administration — a trend which has continued through 2014. Third, committee reports and legislative history surprisingly do not appear to have become a less reliable way of identifying overrides. Fourth, political polarization best explains the decline in conscious overrides, and there is good reason to believe the trend will continue during periods of divided government, with spurts of (conscious) overriding during periods of united government, until political polarization diminishes.