Constitutional Overrides?

Ryan Emanaker (College of the Redlands) has an interesting paper on congressional “overrides” of Supreme Court constitutional decisions. Scotusblog has a summary; the full text, with cites to the literature and a table of cases, is here.

Quick summary: the Rehnquist Supreme Court (the last “natural” Court covered by the study) has “nullified” acts of Congress under the Constitution at a much greater rate than any earlier Courts. However, Congress has also “overridden” those decisions quite frequently. The author counts 41 Rehnquist “nullifications” and 12 overrides (29.3%). That is above the level studies have found for earlier periods, and well above the level typically found for overrides of statutory decisions (under 10 percent, perhaps much lower). Apparently, the author says, “it is actually easier for Congress to override a decision based on constitutional interpretation than it is a decisions based on statutory interpretation.” There’s a healthy “dialogue” between the Court and Congress. Maybe the higher numbers—compared to the past—have to do with the longevity of modern-day justices: if Congress cannot “correct” the Court through appointments, legislation will have to do.

There’s quite a bit of conceptual looseness here. The Court doesn’t run around “nullifying” laws. It says things like, “This goes too far”; or, “You can’t do it this way” (but maybe some other way).” An “override” is when Congress says: “Okay, we’ll try again.”

Interesting pattern of factoids: overwhelmingly, the “nullifications” aren’t about some pro-business crusade. The two largest categories are cases on federalism and sovereign immunity (11 out of 41, or 26.8%) and above all on the First Amendment (17 cases, or 41.5%). Think campaign finance, and think porn. Lo, most of the “overrides,” too, fall into those groups and especially the First Amendment. How about child porn on the Internet? How about banning books in the name of campaign finance reform?

Make of it what you will: that’s where the dialogic action is.