A bunch of people have e-mailed me about this bill:
The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court–
(1) if that judgment is handed down after the date of the enactment of this Act; and
(2) to the extent that judgment concerns the constitutionality of an Act of Congress.
I’m pretty sure that this is unconstitutional, under current legal doctrine. Of course, if Congress enacts this and then stares down the Supreme Court when the Court strikes it down — for instance, if a majority of the public will be on its side — perhaps Congress will win, and current doctrine will thus be changed. I doubt, though, that this will ever be enacted, or that the people will side with Congress rather than the Court here (setting aside whether they should).
But I want to ask a different question: Let’s say that this does indeed get enacted and validated — for instance, assume for the sake of argument that it’s implemented as a constitutional amendment. How does Congress expect even obedient judges to abide by its “revers[als]”?
Assume that the Court strikes down an abortion ban, based on some legal argument and legal precedents that the Justices would find persuasive (e.g., the right to privacy, and Casey). Congress reverses the judgment. The judgment will thus no longer be effective; the parties to the case would be free of it. But then someone else files a similar though not identical challenge to the same law.
Presumably the Justices would still find persuasive the same argument and precedents they found persuasive in the first case. True, the first decision was reversed — but the arguments underlying it and the precedents supporting it still remain. The right of privacy, as defined by Casey, still leads the Court to think that the abortion ban is inconsistent with that precedent. Why should the Court do anything but strike the law down, at least so long as there’s any conceivable distinction between this case and the preceding one (for instance, this challenge is an as-applied challenge applied to different facts, or this challenge is brought by a litigant who has a subtly different interest, and so on)? After all, the Congressional veto didn’t purport to wipe off the books the preexisting precedents; it only reversed one particular Supreme Court judgment. So the Congressional veto might not be terribly effective — again, even if the Justices really do want to obey the veto process.
Ah, you might say, the Court should defer to the Congressional judgment as a precedent itself, albeit one set by Congress and not the Court, and say “We won’t strike the law down, because of this new precedent set by Congress.” But, at least these days, courts don’t just view the result of a case as a precedent; they apply the reasoning of the case.
The Congressional reversal includes no reasoning; it’s doubtless based on legislators’ reasoning, but the reasoning doesn’t appear in the Congressional action (or at least nothing in this proposed statute suggests that it would). Did the Congress reverse the decision because it thought all abortion bans were permissible? Just this particular abortion ban? Just this particular abortion ban as applied to this particular litigant? The Court would have no clear way of telling this, except through guesswork. The Justices really couldn’t apply the Congress’s decision as a precedent even if they wanted to. (There is one potential analogy here: When the Court had a practice of summarily affirming lower court decisions without opinions, the theory was that lower courts at least should abide by that result in logically indistinguishable cases, but weren’t bound by it otherwise; but that also proved not to be very helpful to courts, and the Supreme Court itself felt much less bound by its past summary affirmances than it was by its past reasoned opinions.)
Now this isn’t an insuperable problem. Perhaps this statute could be modified to also have Congress give its justifications for the reversal, though you might often have a hard time getting a majority of the reversal’s supporters endorsing a single justification (except when it’s so vague as to be not very helpful). Or perhaps a Congressional veto of a Court decision striking down a statute might automatically mean the statute is per se validated against all future challenges, though that would pose its own problems. But the current proposal strikes me as procedurally troublesome as well as politically unlikely to be enacted.
UPDATE: Slate‘s Dahlia Lithwick also cricitizes the bill, though on other grounds.
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