Court-Congress Interaction in Statutory Law

  Lawrence Baum, Ohio State University
  Lori Hausegger, Louisiana State University

Political science research on the legislative-judicial interplay in statutory law traditionally was limited. In the past decade, however, several studies of this subject have been carried out. Some studies probe the conditions under which Congress overrides Supreme Court decisions (e.g., Solimine and Walker 1992; Meernik and Ignagni 1997). Others consider the Court's response to the prospect of overrides (e.g., Segal 1997). One popular conception of these processes is based on the positions of the two bodies in ideological space (Spiller and Gely 1992; Eskridge and Frickey 1994). In this conception, Congress overrides a decision if the place of the decision on a liberal-conservative scale is such that the necessary majority at each decision point in the legislative process prefers an alternative to the Court's decision. And the Court, if its preferred interpretation of a statute would lead to an override, will move to a position that is as close as possible to its most preferred position on the scale without triggering an override.

This conception has explanatory power, but we believe that it is incomplete. On the congressional side, responses to Supreme Court decisions are likely to reflect the multiplicity of factors that determine whether legislation is enacted, factors that are not entirely ideological. On the Supreme Court side, the assumption that justices invariably act to minimize the likelihood of overrides is of uncertain validity. Our research has been aimed at probing these complications in the relationship between the Court and Congress.

On the congressional side, we have analyzed the characteristics and determinants of overrides by Congress (Hausegger and Baum 1998). Our study focused on the fates of decisions interpreting statutes during the Supreme Court's 1978-89 terms. There are a number of good studies of congressional responses to the Court's decisions, but ours was the first test of a multivariate model of statutory overrides across all policy areas.

As a first step, we looked at the override process, and what we found underlined the complexity of congressional response to Supreme Court decisions. Some bills that override decisions have the override as their explicit and primary purpose. But overrides are often inserted into broader bills, sometimes late in the legislative process. Such override provisions frequently get little fanfare, and often it appears that only a minority of members know that these provisions exist. (For that matter, some overrides may be inadvertent.) Thus it can be difficult to identify overrides. Drawing on our own research and the extensive research of William Eskridge (1991), we calculated that Congress overrode at least 5.6 percent of the Supreme Court's statutory decisions in the 1978-89 terms, but the actual proportion undoubtedly is higher.

While recognizing the idiosyncratic elements in specific overrides, we posited that systematic forces play a significant role as well. One of those forces was indeed ideological: overrides should become more likely as the ideological distance between the Court's decision and Congress increases. But we also expected that pre-existing opposition to the Court's ruling from interest groups and the federal government and dissent within the Court itself would enhance the prospects for overrides.

We found support for all three hypotheses, reinforcing the findings of some prior studies. Especially interesting were the findings on opposition to the ruling. Amicus briefs on the losing side in the Court, especially congressional briefs, and defeats for the federal government were associated with overrides. Thus overrides provide a way for interest groups and the government itself to redress defeats in the judicial branch. Decisions with dissent were three times as likely to suffer overrides as unanimous decisions, all else being equal. It is uncertain whether dissents serve as a signal to Congress or whether unanimity on the Court simply reflects a lack of controversy over the statutory issue in question.

On the Supreme Court side, we have focused on the phenomenon of "invitations" by the Court to Congress. Majority opinions in statutory interpretation cases sometimes include statements suggesting that Congress consider an override, and some scholars had speculated about the reasons for such statements. We were intrigued by this phenomenon, because it conflicts with the widespread and understandable assumption that the justices want to minimize the prospect of overrides. Thus overrides provided a window on the justices' motivations and on their relationship with Congress.

We initially identified and analyzed invitations during the 1986-90 terms (Hausegger and Baum 1999). For our purposes, invitations were statements that indicated the current or potential need for Congress to override the decision or that referred to problems created by the Court's interpretation of a statute. We found such invitations in about 7 percent of all majority opinions, so they are not a rare phenomenon. We posited that invitations would occur more often under three conditions: when the justices had a relatively low stake in the survival of their decision, because the policy area was one of low interest to them; when they anticipated criticism of their decision, which they wanted to acknowledge in order to reduce conflict with other institutions; and when their decision ran contrary to their overall ideological position, thus making congressional action welcome.

Our analyses offered some support for each hypothesis, but the support for the last hypothesis was especially strong. It appears that justices sometimes feel compelled by their reading of a statute to reach what they consider to be an undesirable result. Having done so, they signal their distress to Congress in the hope that legislators will do what the justices cannot. Indeed, some invitations are phrased in exactly those terms. Thus ideology plays a more complicated role in the justices' contemplation of overrides than the role that is usually posited. The justices sometimes seek to enlist Congress to help them achieve the policies they prefer but feel unable to adopt on their own.

We have extended our study of invitations an additional five terms (Hausegger and Baum 2001). Our analyses of the 1986-95 terms produced similar results, but we also found signs of a change in the conditions for invitations during the last few terms of that period. We are currently extending the study an additional five terms to probe that change. We have also analyzed invitations in dissenting opinions for the 1986-95 period. The clearest finding of that analysis is unremarkable: justices who write dissents tend to ask Congress to override the Court's decision when that decision is most antithetical to their ideological position.

In conjunction with other research, our studies highlight some features of the relationship between Congress and the Supreme Court in statutory interpretation. The Court plays an active part in interpreting statutes and thus in shaping national policy in statutory fields. Its interpretations are not invariably the final word; Congress frequently considers overrides, and a small but significant proportion of statutory decisions are disturbed in some way by subsequent legislation. Nor do overrides constitute the final word, in that override statutes are subject to further judicial interpretation.

A conception of this relationship as an ideological game between the Court and Congress provides some insights, but that conception is incomplete and misleading in some respects. If the justices act to minimize reversals by calculating the ideological position of Congress, they are moderately successful at best. Despite all the roadblocks to congressional action, Congress overrides more than 5 percent of all statutory decisions in the current era.

One reason is that overrides do not simply reflect ideological divergence between the Court's decisions and congressional veto points. Multiple forces shape congressional responses to court decisions. The most sweeping override statute of our era, the Civil Rights Act of 1991, negated nine Supreme Court decisions. The passage of that statute reflected the relative liberalism of that Congress compared with the Rehnquist Court. But also playing into its passage was a powerful alliance of interest groups that could draw support from both liberal and conservative members of Congress.

Further, in the overrides that get carried forward as part of broader legislation, ideology may play a limited role. Instead, the capacity of an interest group to draw on well-placed support or the commitment of a few members to a particular policy position may be the key to passage. Even if Supreme Court justices devoted themselves wholeheartedly to avoiding overrides, their finite abilities to predict the outcomes of a complex legislative process would doom them to failure on occasion.

Moreover, it appears that the justices do not focus on avoiding overrides. In all likelihood, the prospect that Congress will overturn a decision is only a mild concern to most justices most of the time. In any event, the frequency of invitations to Congress indicates that the justices sometimes regard overrides as acceptable or even desirable. Indeed, it appears that the justices regard congressional power to rewrite statutes as a means to deal with the consequences of the constraints that their institutional position puts on their freedom as policy makers.

Thus the interactions between Congress and the Supreme Court are complex, a complexity related to the multiple influences on decisions in each branch. That complexity creates a challenge for those who seek to understand the ways that Congress and the Court respond to each other's powers and decisions. Our continuing research in this area is aimed at addressing that challenge.

References

Eskridge, William N., Jr. 1991. "Overriding Supreme Court Statutory Interpretation Decisions." Yale Law Journal 101:331-455.

Eskridge, William N., Jr., and Philip P. Frickey. 1994. "Foreword: Law as Equilibrium." Harvard Law Review 108:26-108.

Hausegger, Lori, and Lawrence Baum. 1998. "Behind the Scenes: The Supreme Court and Congress in Statutory Interpretation." In Great Theatre: The American Congress in Action, Herbert F. Weisberg and Samuel C. Patterson, eds. New York: Cambridge University Press.

Hausegger, Lori, and Lawrence Baum. 1999. "Inviting Congressional Action: A Study of Supreme Court Motivations in Statutory Interpretation." American Journal of Political Science 43:162-85.

Hausegger, Lori, and Lawrence Baum. 2001. "The Motivations of Supreme Court Justices: Invitations to Congress in Majority and Dissenting Opinions." Paper presented at annual meeting of the American Political Science Association, San Francisco, August 30-September 2.

Meernik, James, and Joseph Ignagni. 1997. "Judicial Review and Coordinate Construction of the Constitution." American Journal of Political Science 41:447-67.

Segal, Jeffrey A. 1997. "Separation-of-Powers Games in the Positive Theory of Congress and Courts." American Political Science Review 91:28-44.

Solimine, Michael E., and James L. Walker. 1992. "The Next Word: Congressional Response to Supreme Court Statutory Decisions." Temple Law Review 65:425-58.

Spiller, Pablo T., and Rafael Gely. 1992. "Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988." RAND Journal of Economics 23:463-92.

Lori Hausegger is an assistant professor of political science at Louisiana State University. Her research interests include judicial decision making and comparative courts. Email address: hausegg@lsu.edu.