Shadow precedents and the separation of powers: statutory interpretation of congressional overrides.

• Author: Widiss, Deborah A.

In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. Despite the importance routinely ascribed to overrides, the actual effect of overrides has received surprisingly little attention within the academic community. This is perhaps because one might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Thus overrides raise unique, and previously largely ignored, questions of statutory interpretation.

Using examples from employment discrimination, an area of the law where Congress frequently overrides Supreme Court decisions, this Article demonstrates that the Supreme Court and lower courts often narrowly construe the significance of congressional overrides and instead rely on the prior judicial interpretation of statutes as expressed in overridden precedents. Thus, for example, although Congress clearly disagreed with a Supreme Court decision holding that pregnancy discrimination is not sex discrimination, lower courts, noting that the statutory language of the override only explicitly references "pregnancy, childbirth, or related medical conditions," continue to apply the reasoning employed by the Court in that overridden case when faced with sex discrimination claims in other contexts. I call this phenomenon reliance on "shadow precedents."

The Article shows how reliance on shadow precedents threatens legislative supremacy and undermines the standard rationales offered for adherence to precedent. It argues that, in drafting overrides, Congress should strive to clarify the extent to which it disagrees with the prior judicial interpretation. It also argues that courts should adopt interpretive conventions that are more respectful of the significance of the enactment of an override: (1) a rebuttable presumption that an override supersedes the judicial interpretation of the pre-existing statutory language, thus requiring "fresh" interpretation of the original statute as well as the override, and (2) a clear rule that overridden interpretations are no longer binding on lower courts.

INTRODUCTION I. STATUTORY OVERRIDES AND THEIR ROLE IN THE SEPARATION OF POWERS A. Overrides As a Check on Judicial Law-Making B. Empirical Studies of Overrides II. THE INTERACTION OF PRECEDENT AND OVERRIDES A. The Standard Rule of Precedent B. Overrides and the Creation of "Shadow Precedents" C. Overrides and Retroactivity III. EXAMPLES OF SHADOW PRECEDENTS IN EMPLOYMENT DISCRIMINATION JURISPRUDENCE A. Federal Employment Discrimination Law and the 1991 Civil Rights Act B. Lorance v. AT&T Technologies C. Price Waterhouse v. Hopkins D. General Electric Company v. Gilbert E. Different Approach: The "Nullification" of Patterson v. McLean Credit Union IV. REDUCING RELIANCE ON SHADOW PRECEDENTS A. Problems with Reliance on Shadow Precedents B. Potential Congressional Responses--and Their Limitations C. Proposed Interpretive Reforms 1. "Fresh" Statutory Analysis with a Rebuttable Presumption that the Prior Judicial Interpretation Is Superseded 2. Overridden Precedents Should Not Bind Lower Courts 3. Sample Applications 4. Scope of the Proposal D. Benefits of the Proposed Reforms CONCLUSION INTRODUCTION

When a court says to a legislature: 'You (or your predecessor) meant X," it almost invites the legislature to answer: "We did not." (1) In passing legislation to override a judicial interpretation of a statute, Congress does indeed answer, "We did not." An override thus raises fundamental questions regarding the relative power of Congress and the courts. Using examples from employment discrimination jurisprudence, this Article demonstrates that courts often continue to follow statutory interpretation precedents whose holdings have been repudiated by Congress. Accordingly, although overrides are generally lauded as a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy, the "check" they offer on the judicial branch is far less robust than is typically assumed.

The role that overrides are presumed to play in promoting legislative supremacy depends on two propositions. The first is that Congress monitors court decisions in statutory cases closely enough to be aware of interpretations with which it disagrees. Although, traditionally, there was skepticism regarding this point, empirical scholarship makes clear that Congress does respond in some fashion to many statutory decisions. (2) For example, a recent study found that about half of the Supreme Court's tax decisions were at least mentioned in Congress, and that Congress enacted statutory language either overriding or explicitly codifying approximately fifteen percent of the interpretations. (3)

The second necessary proposition is that overrides do, in fact, override: that is, that by enacting an override Congress effectively supersedes statutory interpretations by the courts. The validity of this second proposition has typically been assumed rather than established. A recent empirical study, however, found that high levels of judicial "dissensus" often remain after the passage of an override. (4) This Article is the first attempt to craft a theoretical framework to understand the interpretive puzzles inherent in analyzing overrides. (5) It demonstrates that, because Congress technically cannot overrule judicial decisions, the interpretation of overrides poses a particular challenge within a judicial system that is built on adherence to precedent.

One might assume that overridden precedents simply have no more effect. The reality, however, is far more complex. Overrides are often drafted relatively narrowly to respond to a particular judicial holding. Difficult questions therefore arise when a court faces a new factual scenario that is arguably "relevantly similar" to the issue addressed in the precedent case (such that, but for the override, it would be controlled by the precedent) but not clearly within the statutory language of the override itself. Courts must then determine whether the rationales expressed in the overridden decision continue to govern interpretation of the statute and the corollary question of whether the enactment of the override can be understood to reinterpret the preexisting statutory language. Both the Supreme Court and lower courts resolve these questions in ad hoc and inconsistent manners.

Lower courts, in particular, are faced with competing signals: they must apply the law as Congress enacts it, but they must also follow Supreme Court (and circuit court) precedent to the extent that it is not clearly superseded. Some interpret overrides as fully supplanting the precedent case, an understanding that is often suggested by legislative history associated with the override. Other courts interpret overrides as carving out an exception to a general interpretive principle announced in the precedent case and deem any factual applications of such a principle that Congress "fails" to address in the override language to continue to be governed by the precedent case. Thus, for example, even though Congress clearly disagreed with a Supreme Court decision holding that discrimination on the basis of pregnancy is not sex discrimination, many lower courts, noting that the text of the override only specifically addressed "pregnancy, childbirth, or related medical conditions," apply the reasoning employed by the Court in that overridden case when faced with sex discrimination claims in other contexts. (6) Notwithstanding Congress' repudiation of the central holding of a precedent, the precedent continues to hold sway. This is a phenomenon that I call reliance on "shadow precedents."

Statutory precedents typically serve two functions. They can provide an interpretive gloss on statutory language that is applied to future cases decided under that statute. (7) They can also govern interpretation of relevantly similar language in other statutes. (8) Shadow precedents arise in both contexts. And, although adherence to precedent typically promotes fairness, predictability, and efficiency, (9) reliance on shadow precedents often undermines these objectives. Cases that are similar are treated differently because some are governed by the override and others by the overridden precedent. Under the current ad hoc approach, individuals cannot reasonably predict whether conduct will be governed by the override or by the rationales expressed in the shadow precedent. And courts must not only resolve the difficult threshold question of whether to apply the override or the shadow precedent but also develop a parallel body of case law further interpreting the implications of precedents whose primary holdings have been repudiated by Congress. Moreover, to the extent that reliance on shadow precedents is counter to Congress' intent, the practice undermines the central role that overrides are expected to play in ensuring legislative supremacy.

Employment discrimination is an area where this problem often takes center stage because Congress frequently disagrees with Supreme Court interpretations of Title VII and other employment discrimination laws. The 1991 Civil Rights Act, (10) for example, overrode twelve decisions by the Supreme Court concerning employment discrimination and related attorneys' fees issues. (11) In September 2008, Congress enacted an ADA Amendments Act (12) which overrides several employment decisions under the Americans with Disabilities Act. The same Congress also considered a proposed...