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Overturning the Roberts Court:

One of President Obama's first acts as President was to sign legislation overturning the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber and make it easier to file pay discrimination claims. As David Ingram reports, this may have been a sign of more to come, as Congressional Democrats are seeking to undo several significant Roberts Court decisions.

As I noted earlier this week, Senator Specter and others are seeking to overturn the Court's Stoneridge decision to create the potential for third-party liability for securities fraud actions. Also in the works is legislation to overturn Riegel v. Medtronic, which found that the Medical Device Act preempts common law claims against medical device manufacturers, as well as Twombly and Iqbal, two decisions that tightened notice-pleading requirements.

Related Posts (on one page):

  1. Overturning the Roberts Court:
  2. Overturning Stoneridge:
SuperSkeptic (mail):
An 8-1 medtronic opinion strikes me as extremely partisan conservative politics as well. Best to pass new legislation immediately.

However, I will say that the preemption issue does need more clarity from the Courts standard of "well we feel like this kind of claim is preempted by Congress, but not that one."
8.9.2009 11:01am
Snitty:
Last summer I edited a treatise with a section on pre-emption (how the court's been spelling it in most recent opinions). I totally agree that the court needs to clarify it. If only to stop some of the absurd lower court decisions that have been coming down like:

(1) Finding NYC Hybrid Taxi Law as pre-empted by congress' fuel economy regulations, and
(2) A negligence suit for damage caused by cell phone radiation pre-empted by FCC power limit regulations.

The latter suit was found to be pre-empted because the court would have had to determine if the FCC maximum levels were safe, even though it wasn't a question raised in the complaint.
8.9.2009 11:22am
CJColucci:
I'm not sure what "overruling" the Roberts Court has to do with it. These were contentious issues of statutory interpretation, in an area where what Congress says, if we can figure it out, goes. And where Congress can change its mind -- if it had a mind -- if it doesn't like what the Court revealed about the implications of what it passed. Now if Congress keeps rewriting its statutes after the Roberts Court gets its hands on them, that may say something about the way the Court does statutory interpretation.
8.9.2009 11:27am
SuperSkeptic (mail):
Now if Congress keeps rewriting its statutes after the Roberts Court gets its hands on them, that may say something about the way the Court does statutory interpretation.

There may be merit in that point, particularly for the other issues than pre-emption. But I think the larger issue with pre-emption not exactly statutory interpretation, but rather it is the "implied" pre-emption based on any given statutory scheme or policy. This is inherently a fuzzy area, but the partisan controversies could be exacerbated by conservatives notions of federalism v. liberal notions of congressional deference.
8.9.2009 11:42am
SuperSkeptic (mail):
...which ironically, give the feds more power, contrary to typical conservative assertions of federalism concepts...
8.9.2009 11:44am
Prosecutorial Indiscretion:
Perhaps, by engaging in the act of countering the Court through democratic means, this will give rise on the Left to broader support for judicial restraint and deference to the democratically-accountable branches. (I expect that won't really happen until they get five consistent votes, but a man can hope - of course, with Democrats controlling the other two branches I expect more people on the right will support a less deferential Court, too.)
8.9.2009 11:47am
Attila (Pillage Idiot) (mail) (www):
The Congress that votes on 1000-plus page bills without knowing what's in them is an excellent judge of what the other branches are doing. It's as if the Supreme Court had decided cases based on the parties' names and a summary of the complaint.
8.9.2009 11:51am
Pro Natura (mail):
if Congress keeps rewriting its statutes after the Roberts Court gets its hands on them, that may say something about the way the Court does statutory interpretation
Or -- based on the particular decisions that were mentioned -- something about how effectively trial lawyers funneled money into federal elections these past several election cycles
8.9.2009 12:04pm
SG:
Without expressing an opinion on the underlying public policy issues at stake in any of these cases, this strikes me exactly as how the system should function.
8.9.2009 12:20pm
Jacob A (mail):
Perhaps the narrowly construed holdings that are reportedly more common under the current Chief Justice are easier to reverse through new legislation than past Supreme Court decisions. As a casual observer, I don't know enough about the specific cases mentioned to tell if they fall into the "narrowly construed" category, but is seems to me that the narrower the holding, the easier it would be to reverse a decision through targeted legislation.
8.9.2009 12:28pm
NYC Esq.:
An honest question: what would be the most recent example of legislation enacted to overturn a "liberal" SCOTUS decision?
8.9.2009 12:34pm
Off Kilter (mail):
"It's as if the Supreme Court had decided cases based on the parties' names and a summary of the complaint."

And empathy...
8.9.2009 12:36pm
govols:
Atilla:

Did you complain when the Patriot Act was passed? Or the Medicare Drug Benefits bill? Do you think Republicans who voted on that bill read it? Because I'll bet you, even when Republicans are in charge, and in fact, probably for most of the last XX years, most members of Congress have not read all of most bills they vote on.

Prosecutorial Indiscretion:

If you look at the recent liberal "Constitution in 2020" compilation, you'll find that a solid majority (though certainly not all) of contributors either 1) want to limit the power of the Court to prevent further conservative decisions, or 2) don't have a particular role for it in their progressive goals (i.e. Bruce Ackerman --> $80,000 for each citizen when they turn 18) and thus might prefer a neutered court as the better bet. That's probably a tactical shift--what, really, do liberals need from the Court that they haven't already achieved in the 1930s and the 1960s--but it may be a harbinger of things to come.
8.9.2009 1:11pm
Paul Allen:
As discussed earlier, the Ledbetter Fair Pair act does not alter the analysis in the Goodyear case. It affirms as a in statute, prior precedent which the Goodyear case left untouched:

Namely that given a present act of discrimination, prior acts can be incorporated into the claim. To do so, the present act must stand on its own. This is long standing.

This is not what Ledbetter sought in court. She put forth a novel claim of action where the claimed present act of discrimination itself depended a projecting forward and accepting a past act of discrimination.

This pulls the cart before the horse with respect to both precedent and even the new Ledbetter Act.

Political Theater.

Prior commentary at the VC here:
http://volokh.com/posts/1233102017.shtml#523920
http://volokh.com/posts/1233102017.shtml#523983
http://volokh.com/posts/1243188606.shtml#589381

Critical Point:

The new bill declares that doing x "today", restores your liability for doing x "yesterday". The Ledbetter holding is that doing x "yesterday" is not the same as if you also did x "today".

Confusing those two things is a logical fallacy known as Affirming the Consequent.
8.9.2009 1:15pm
ruuffles (mail) (www):

It's as if the Supreme Court had decided cases based on the parties' names and a summary of the complaint.

Rehnquist almost did just that in Bush v. Gore; it was only after Stevens talked him down that he agreed to oral arguments.
8.9.2009 1:17pm
Attila (Pillage Idiot) (mail) (www):
govols,

I didn't say they had to read the bill. If you've ever read legislation, it often goes something like this: "Section 2410 of the ABC Act is amended by inserting before the period a comma and the following: 'or any other similar product.'" Figure that one out, even if you've read it!

What I said was "knowing what's in" the bills. You know, having read actual descriptions of what actual language would do, followed by actual congressional hearings regarding actual things that the actual bill would do.

And by the way, Attila has two "t's" and one "l". Atilla was Attila's illegitimate half-brother who stayed home and nationalized the goat industry.

-- Attila
8.9.2009 1:38pm
some guy:
Atilla:

Did you complain when the Patriot Act was passed? Or the Medicare Drug Benefits bill?


Every conservative I know complained when the Medicare bill was paased.
8.9.2009 1:53pm
some guy:
sorry, "passed"
8.9.2009 1:54pm
Disintelligentsia (mail):
This is how its supposed to work. The branches check each other and, hopefully, improve each other. The court pulls back the curtain on the absurd result of overly vague legislation and Congress revisits it so that the intention is clearer. Hence my distaste for the judicial doctrine that congressional acts are presumed to be constitutional. That rule essentially leaves Congress unchecked and results in the judiciary abdicating its role in our system of government.
8.9.2009 1:56pm
David M. Nieporent (www):
Now if Congress keeps rewriting its statutes after the Roberts Court gets its hands on them, that may say something about the way the Court does statutory interpretation.
Only if you assume that Congress's view of the meaning of statutes is static over time.
8.9.2009 2:29pm
David M. Nieporent (www):
An honest question: what would be the most recent example of legislation enacted to overturn a "liberal" SCOTUS decision?
The Military Commissions Act of '06?
8.9.2009 2:30pm
PlugInMonster:
I loved the Patriot Act because I'm a patriot. I hated the Medicare bill because I hate socialism.
8.9.2009 3:44pm
PlugInMonster:

This is how its supposed to work. The branches check each other and, hopefully, improve each other. The court pulls back the curtain on the absurd result of overly vague legislation and Congress revisits it so that the intention is clearer. Hence my distaste for the judicial doctrine that congressional acts are presumed to be constitutional. That rule essentially leaves Congress unchecked and results in the judiciary abdicating its role in our system of government.


Yes this what the Founders wanted. They knew that there might be a Congress ideologically at odds with the Supreme Court, so they gave each equal power. At least this way neither can run roughshod and create a defacto tyranny, which is the #1 thing the Founders wanted to prevent.
8.9.2009 3:46pm
Andrew Hyman (mail) (www):
Per CJColucci above, perhaps "RESPONDED to a court decision" would be a better description than "OVERTURNED a court decision" in situations where Congress has not explicitly disputed that the Court interpreted the previous statute correctly. That goes double if the legislation is prospective only, and would not actually give Ms. Ledbetter another shot at winning.

Additionally, if the new legislation enacted by Congress would not give someone in the same position as Ms. Ledbetter a shot at winning her case in the future, then the word OVERTURNED is definitely inapt. Indeed, per Paul Allen above, I'm not 100% sure that the new Fair Pay Act would give someone in the same position as Ms. Ledbetter a shot at winning her case in the future.

Incidentally, I generally support congressional legislation to equalize pay between men and women. At the same time, SCOTUS decided the Ledbetter case correctly based upon the legislation that was actually on the books at the time, IMO.
8.9.2009 4:42pm
Dave N (mail):
Rehnquist almost did just that in Bush v. Gore; it was only after Stevens talked him down that he agreed to oral arguments.
Ruufles, do you have a source for this assertion? Whenever something factual is claimed, particularly if it can be perceived as an attack on a specific individual, in this case Chief Justice Rehnquist, providing a link allows others to see if your assertion has validity.

I would note that in the case of Bush v. Gore, the procedings were moving very fast. On December 8, 2000, the Florida Supreme Court ordered a statewide manual recount. On December 9, the Supreme Court stayed the order of the Florida Supreme Court. Two days later, the Court heard oral arguments and then issued its decision the following day.

One reason for the speed, and something often forgotten, is that the "Safe Harbor" day for the 2000 election was December 12, the day the Supreme Court issued its opinion. The "safe harbor" provision, found in 3 U.S.C. § 5, prevents legal challenges to electors confirmed by their states at least six days prior to the meeting of the Presidential electors.
8.9.2009 5:32pm
santa monica (mail) (www):
Going back to the OP's main point, it seems like the congressional actions are exactly what we want politically (even if we may disagree with some of the specific goals of the new legislation). A court makes a ruling. Those of us who are conservative say, "Good, no judicial law-making. If we don't like the current law, go to the state--or federal--lawmakers and pass new laws."

And that is what is happening. Down-the-road, when there is a conservative president with a conservative Congress, laws will be passed that will overturn pro-environmental judicial decisions. Again, perfectly proper. It all goes back to the mantra, 'elections matter.'

I know conservatives support this process. And I think that liberals do as well. (Again, with the full understanding that we will often be unhappy with the factual *results* of a new law overturning/changing a judicial decision with which we had agreed.)
8.9.2009 6:09pm
Brian Garst (www):
Now if Congress keeps rewriting its statutes after the Roberts Court gets its hands on them, that may say something about the way the Court does statutory interpretation.

Or the general thoughtlessness which typically characterizes most acts of Congress. It works both ways.
8.9.2009 7:01pm
GULC 3L:
I know there aren't a lot of FCA wonks out there... but this Congress also overturned Allison Engine.
8.9.2009 9:49pm
jellis58 (mail):
NYC Esq.:

"An honest question: what would be the most recent example of legislation enacted to overturn a "liberal" SCOTUS decision?"

The Military Commisions Act was pretty clearly designed to overturn Rasul v Bush's interpretation of the 28 U.S.C. §2241(the modern habeas statute) although boumedian figured out a way to get around that based on the constitution. .

I guess also the Class action fairness ACt could be seen as overturning the interpetation of the aggregation of claims and complete diversity rules for diversity jurisdiction but that ones not as obvious in the sense that its purpose wasnt to directly cancel out one specific case.

Thats all I got for now but im sure there are others.
8.10.2009 4:00am
jellis58 (mail):
oh oh just thought of another one (but I admit that this one doesnt have a real solid left/right split) RFRA was designed to overturn employment division v smith. the majority was mostly conservative justices but its my understanding that conservatives, in general, heavily favored passing RFRA and viewed Smith as hostile to religion (please correct me if I wrong, RFRA was passed when I was about 10 years old).

And yes I know Boerne gutted a good deal of the federal RFRA but it still applies to actions taken by the federal government and many states have their own RFRAs which were enacted as a response to Smith.
8.10.2009 4:14am
jellis58 (mail):
oh oh just thought of another one (but I admit that this one doesnt have a real solid left/right split) RFRA was designed to overturn employment division v smith. the majority was mostly conservative justices but its my understanding that conservatives, in general, heavily favored passing RFRA and viewed Smith as hostile to religion (please correct me if I wrong, RFRA was passed when I was about 10 years old).

And yes I know Boerne gutted a good deal of the federal RFRA but it still applies to actions taken by the federal government and many states have their own RFRAs which were enacted as a response to Smith.
8.10.2009 4:14am
Joseph Slater (mail):
One could also see Ledbetter as part of a mini-trend of Congress amending Title VII in response to Supreme Court cases which interpreted that statute in a way that was (take your pick) (i) incorrect or (ii) too narrow for the current Congress's taste. See also the Civil Rights Act of 1991, specifically voiding the results in some then-recent, employer-friendly Supreme Court Title VII cases.

On one hand, two revisions in response to court interpretations is not a huge number. On the other hand, how many major federal statutes get revised twice in less than twenty years specifically in response to Supreme Court decisions?
8.10.2009 8:36am
NYC Esq.:
Agreed that the MCA certainly answers my question above; RFRA arguably does, but yes, the politics are not nearly as clear-cut there. Interesting that both of these acts were themselves negated, at least in part, by other SCOTUS decisions. It seems that lately the left has been far more successful than the right in overturning unfavorable SCOTUS decisions.
8.10.2009 8:52am

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