Overruled?

Legislative Overrides, Pluralism, and Contemporary Court-Congress Relations

Jeb Barnes

• Publisher: Stanford University Press
• Year: 2004
• ISBN:
  9780804767200
• Edition: 1
• Topic: Derecho
• Subtopic: Historia jurídica

Since the mid-1970s, Congress has passed hundreds of overrides—laws that explicitly seek to reverse or modify judicial interpretations of statutes. Whether front-page news or not, overrides serve potentially vital functions in American policy-making. Federal statutes—and court cases interpreting them—often require revision. Some are ambiguous, some conflict, and others are obsolete. Under these circumstances, overrides promise Congress a means to repair flawed statutes, reconcile discordant court decisions, and reverse errant judicial interpretations. Overrides also allow dissatisfied litigants to revisit issues and raise concerns in Congress that courts have overlooked.

Of course, promising is one thing and delivering is quite another. Accordingly, this book asks: Do overrides, in fact, effectively clarify the law, reverse objectionable judicial statutory interpretations, and broaden deliberation on contested issues? The answers provide new insights into the complex role of overrides in U.S. policy-making and in the politics of contemporary court-Congress relations.

Part I Do Overrides Matter?

3 Assumptions and Hypotheses

Because the override literature largely overlooks what happens after Congress acts, the analysis must address the threshold issue of whether overrides matter. More specifically, does the passage of overrides significantly increase levels of judicial consensus and hence legal certainty, or do independent federal judges find ways to circumvent overrides? This question is deceptively complex. In parsing its complexity, this chapter divides the analysis into two parts. First, it sets forth my assumptions about the nature of legal constraints and judicial decision-making, and explains why it is reasonable to assume that overrides are capable of significantly increasing levels of judicial consensus. Second, the chapter develops competing hypotheses about whether the passage of overrides, in fact, significantly increases levels of judicial consensus. With these assumptions and hypotheses in place, Chapter 4 discusses the data, methods, and findings.

Are Overrldes Capable of Significantly Increasing Judicial Consensus?

This question of whether overides matter raises issues about the nature of legal constraints and judicial decision-making that have divided scholars for more than a century. As will be discussed, this capter does not seek to ersolve controversy over these issues or prove anything couterintuitive about the nature of decision-making according to rules. Indeed, it is unclear whether we can resolve the long-standing debate between legalists, who assert that law—or a least a sense of professional obligation to apply the law in good faith-significantly constrains judicial decision-making, and behavioralists, who argue that formal rules mercly provide cover for judicial policy-making. We can, howerer, identify the competing schools of thought and make assumptions explicit. Accordingly, this chapter opens by characterizing the main styles of argument about the nature of legal constraints and judicial decision-making (the legal model, the behavioralist model, and theinstitutionalist model), and why it is assumed that overrides, in the context of the broader override process, can send to the court effective signals that significantly increase levels of judicial consensus.¹

The “Legal Model”: Positivism, the Realist Critique, and Post-Positivism

The classic American conception of law and judicial decision-making is “legal formalism,” which enjoyed its heyday among scholars in the latenineteenth and early-twentieth centuries, when the academic study of law was introduced in American universities² It recalls Max Weber’s concept of “formal-rational” law, which envisages law as a set of mutually exclusive and exhaustive dispositional categories,³ and it found new life under H. L. A. Hart’s reformation of legal positivism, which holds that legal rules have clear, determinate meaning in routine cases.⁴ Under this view, legal rules take the following form: “if condition X exists, legal status Y applies, and consequence Z shall be imposed.”

Formalists imply that judicial decision-making under rules is mechanical: judges ascertain the facts, find the law, and deduce the result. Consider a speed limit, which fines drivers who exceed 35 miles per hour along a stretch of road. If drivers are caught exceeding the limit, they are speeders, and a judge will impose the prescribed fine; if drivers do not exceed 35 miles per hour, they are not speeders, and no fine will be imposed.

From this perspective, the issue of whether overrides can increase judicial consensus is axiomatic. By definition, formal rules provide the major premise of a syllogism that controls judicial decision-making. Hence, clearer rules mean more consistent rule application. Surely overrides hold the promise of clarifying the underlying rules. They offer Congress a direct means to refine the meaning of ambiguous laws and correct drafting errors that may have produced conflicting or confusing laws.

Few, if any, legal scholars currently adhere to legal formalism in its simplest form. The problem lies in its ideal of syllogistic legal reasoning. Linguists and legal philosophers have long argued that general rules connote simple scenarios, which have no necessary application to the complexities of actual disputes. Hence, no textual basis exists for determining whether the intricacies of the case at hand materially differ from the spare picture envisaged in the rule, or whether the differences between the case and the rule’s core concept are immaterial.⁵ In short, judges cannot simply “find” the governing law; rather, they must choose whether legal standards apply based on extra-textual factors.

Reconsider the speed limit. Does it apply to police chasing a fleeing suspect? An ambulance driver rushing an accident victim to the emergency room? A worried parent who is late to pick up a child from school? Under the literal terms of the law, the speed limit applies to each scenario equally, requiring a judge to fine the police, ambulance driver, and parent alike. But surely judicial decision-making is not so mechanical. Rather than blindly apply the rule as written, judges will decide whether these cases are analogous to the paradigmatic scenario of an ordinary driver, who carelessly exceeds the speed limit. The text of the law does not control this decision; it merely provides a blanket rule that seems over-inclusive. Accordingly, when applying the law in practice, judges will look beyond its literal terms and determine whether the speed limit should govern a specific dispute.

Building on these insights, legal realists in the 1920s and 1930s argued that judges inevitably rely on their policy preferences and sense of fairness when determining the scope of rules. Based on these arguments, they posited a “political jurisprudence,” which, at its most extreme, turns formalism on its head. Specifically, whereas formalists envisage judges deducing a result from preexisting rules, legal realists assert that judges start with a desired result and then find rules that rationalize their decision. Therefore, realists see every legal decision as a policy decision. Moreover, any explicit reliance on rules, or “law talk,” is verbal legerdemain aimed at preserving the appearance of neutrality.⁶

Legal realism has been enormously influential among political scientists who study the courts.⁷ However, in recent years, the legal model has made a comeback under the banner of “post-positivism.” The genetic marker of post-positivist theory lies in its conception of the law as an internal, as opposed to an external, constraint on judicial decision-making. In a trenchant essay, Howard Gillman explains as follows:

“[P]ostpositivist” legalists make claims, not about the predictable behavior of judges, but about their state of mind—whether they are basing their decisions on honest judgments about the meaning of the law. What is post-positivist about this version is the assumption that a legal state of mind does not necessarily mean obedience to conspicuous rules; instead, it means a sense of obligation to make the best decision possible in light of one’s general training and sense of professional obligation.⁸

From this perspective, analyzing patterns of consensual and discordant rule application during the override process is somewhat beside the point. The crucial issues do not involve patterns of judicial outcomes. In fact, post-positivism implies that counting judicial votes can be misleading, because there may be cases of discordant rule application that reflect good-faith disagreements over legal principles that weakly constrain judicial discretion. There also may be cases of consistent rule application that reflect freewheeling policy-making among like-minded judges. Thus, under post-positivism, we should focus not on judges’ votes but on how judges experience the process of judging and how this process shapes their reasoning.

The “Behavioralist Model”

Behavioralists object to both positivist and post-positivist strands of the legal model. With respect to positivism, behavioralists have rigorously tested the assertion that legal rules strongly constrain judicial discretion, especially in connection with the Supreme Court. They have found, time and time again, that Justices’ underlying ideological preferences—as opposed to the text of preexisting law—offer a parsimonious explanation of voting patterns in Supreme Court decisions. The leading advocates of the behavioralist model, Jeffrey Segal and Harold Spaeth, sum up decades of careful studies as follows: “Simply put, Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he is extremely liberal.”⁹

With respect to post-positivism, behavioralists object on methodological grounds. They argue that if inconsistent voting patterns may or may not be legally motivated, and if consistent voting patterns may or may not be legally motivated, then one cannot systematically test post-positivist claims concerning legal influence as an “internal constraint.” Behavioralists add that, for obvious reasons, asking judges whether their decisions reflect their policy preferences, as opposed to the law, is not promising. As Segal and Spaeth argue, “Judicial nominees who can state under oath before the entire nation that they had never thought about Roe v. Wade can hardly be fruitful candidates for traditional survey measures.”¹⁰

Under the behavioralist model, whether overrides can clarify the law or check the courts is an empirical question that depends on whether judges interpret overrides consistently with the law’s language. To operationalize this issue, behavioralists would engage in the following steps: (1) predict judicial outcomes based on the language of the override; (2) assess whether post-override judicial interpretations are consistent with these predictions; and (3) evaluate the effects of competing determinants of judicial outcomes, especially the presiding judges’ attitudes and policy preferences.

It should be added that overrides are unlikely to constrain judicial discretion under a strict behavioralist approach because it is unlikely that the bare text of any law mechanically constrains judicial decision-making; language is simply too pliable. Moreover, to the extent that we observe judicial consensus after Congress acts, behavioralists would predict that such consensus would reflect the presiding judges’ common policy preferences, as opposed to the constraining affects of an override. In short, from a behavioralist perspective, we would expect to find that the passage of overrides is largely symbolic, changing the terms of written rules that are made to be broken—or at...

Table of contents

• Copyright Page
• Table of Contents
• List of Tables
• Table of Figures
• Acknowledgments
• Background
• Part I Do Overrides Matter?
• Part II What Patterns of Court-Congress Relations Underlie the Override Process?
• Conclusion
• Appendix - Summary of Overrides Analyzed
• Index