Why Congress does not challenge judicial supremacy.

Author:Devins, Neal
Position:Special Issue on Judicial Supremacy


Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other way to advance the same policy priorities. Relatedly, party polarization cuts against bipartisan embraces of pro-Congress views of the law and cuts in favor of Democrats and Republicans advancing competing views of congressional authority. Finally, Congress makes use of institutional structures that accentuate lawmaker disinterest in legal questions and treat the courts as the last word in legal disputes. The committee system, the Offices of Legislative Counsel, the Congressional Research Service, and the offices of House and Senate counsel all contribute to Congress's acceptance of judicial supremacy.

Table of Contents Introduction I. Institutional Incentives A. The Competing Incentives of Congress and the Executive B. Lawmaker Motivations C. Disunitariness = Disinterest & Disarray D. Position Taking, Polarization, and Congressional Responses to Judicial Decisions E. Wrapping Up II. Institutional Structures A. Legislative Drafting B. Congress in Court 1. Agency Litigation Authority 2. The DOJ's Duty to Defend Federal Statutes 3. The House and Senate Counsel III. Concluding Observations A. The Exceptions Power B. The Confirmation Power INTRODUCTION

Let me start with a confession: I set out to write an article on why Congress affirmatively backs judicial supremacy. After all, there are numerous examples of Congress seeking political cover by explicitly punting issues to the Supreme Court. (1) At the same time, these examples are unrepresentative of the larger whole. They suggest that Congress is actually thinking about the judicial role and the political advantages of a judicial supremacy regime. (2) The truth, however, is that Congress rarely thinks about the courts when enacting legislation. (3) Correspondingly, lawmakers never think about articulating a distinctive pro-Congress view of either Congress's constitutional authority or theories of statutory interpretation. (4) On those rare occasions when Congress contemplates judicial review of its handiwork, the sole focus of lawmakers and staff is on what the courts will do--not what the courts should do. (5) For example, when responding to Supreme Court rulings, lawmakers hardly ever criticize the Court or push the Court to consider a new theory of constitutional or statutory interpretation; instead, lawmakers operate within the boundaries set by the Court. (6)

My Article will explain why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In part, lawmakers are uninterested in abstract questions of institutional power; instead, lawmakers are interested in advancing their vision of good public policy, winning reelection, and gaining personal power within Congress. (7) Relatedly, lawmakers hardly ever have incentive to speak with a unitary voice. (8) Lawmakers who oppose a measure will embrace a narrow view of congressional power; lawmakers who support the measure will back a broad view. (9) Further reflecting Congress's focus on policy goals and not judicial theories, lawmakers and their staff--when drafting legislation--largely delegate legal questions to two court-centric offices within Congress: the Offices of Legislative Counsel and the Congressional Research Service's American Law Division. (10) These offices have no interest in advancing a broad or coherent view of congressional power; instead, they assume that courts speak the last word on legal questions and that precedent is to be adhered to, not challenged. (11) More telling, lawmakers essentially give the Department of Justice (DOJ) a free hand to craft legal arguments in court. (12) The House or Senate is hardly ever a party to a legal dispute; (13) Congress has also left it to the court-centric Judiciary Committees to oversee the DOJ. (14)

In short, the individual incentives of lawmakers and the corresponding institutional structures that Congress makes use of both cut against lawmaker interest and involvement in legal questions. Making matters worse, party polarization exacerbates lawmaker tendencies to trade off institutional prerogatives for policy goals. (15) With Democrats and Republicans increasingly pursuing conflicting agendas and with power increasingly centralized in House and Senate leadership, party polarization cuts against lawmakers thinking concretely about legal issues, let alone asserting a pro-Congress view of the law. (16) Correspondingly, Congress exercises power through bicameral legislation and cannot resist the courts or the executive without strong majorities in both houses. (17) Indeed, as compared to its powers over the executive (some of which do not require bicameral action, for example, the powers to confirm and investigate), Congress has few levers of power to influence the judiciary. (18)

In making these points, this Article extends existing scholarship on Congress's interest in legal questions. Several scholars, myself included, have examined why it is that Congress is interested in issues of policy and power, not abstract issues involving the scope of Congress's power to advance a pro-Congress view of constitutional or statutory interpretation. (19) Scholars, too, have examined the issue of Congress-federal court dialogue through examinations of the Offices of Legislative Counsel and the ability of today's polarized Congress to override disfavored statutory interpretation cases. (20) This Article seeks to connect the dots of existing scholarship and advance a more nuanced explanation for why Congress acquiesces to judicial interpretations of the Constitution and federal statutes.

This Article is divided into three parts. Part I contrasts the institutional incentives of Congress and the executive and, in so doing, explains why lawmakers are generally uninterested in legal questions and, relatedly, why Congress lacks the institutional will to advance a coherent pro-Congress view of legal issues. Part I also explains how party polarization exacerbates Congress's tendencies to discount legal questions. Part II considers institutional structures in Congress and how those structures both accentuate lawmakers' disinterest in legal questions and treat the courts as the last word in legal disputes. Part II will focus on the committee system, the ascendency of the court-centric Judiciary Committee to oversee legal questions and the DOJ, and the role of the nonpartisan, court-centric Offices of Legislative Counsel and Congressional Research Service. Part II will also contrast the executive to Congress, noting how the institutional structures of the executive branch facilitate pro-executive understandings of the law. (21) Part III is a summary and extension of the first two Parts. Specifically, Part III considers how Senate judicial confirmation fights and Congress's refusal to limit federal court jurisdiction support my conclusions about Congress's acceptance of judicial supremacy.


    The Constitution does not detail the actual powers of the three branches; instead, the "ongoing practice of politics" defines the practical rights of each branch to exercise power both "in an absolute sense and relative to one another." (22) The early Congresses were vigorous defenders of legislative prerogatives. On war powers, Congress routinely asserted its prerogative to declare war, and Presidents and the Supreme Court alike saw Congress as empowered to "declare a general war or ... a limited war." (23) On issues implicating judicial power, Congress expressed its disapproval of the Marbury v. Madison litigation both by canceling the Supreme Court's 1802 term and by refusing to honor a Court order to turn over documents concerning the Marbury appointment. (24) The Jeffersonian Congress, too, threatened to use its impeachment power to clear the bench of disliked Federalist judges. (25) The Supreme Court did not fight back. Court decisions tracked legislative debates. (26) Perhaps more telling, Marbury was the only case to invalidate an act of Congress before 1857; the Court and Chief Justice John Marshall argued that Congress should not impeach judges but, instead, should recognize the "mildness" of the judicial character by statutorily reversing "legal opinions deemed unsound." (27)

    Today's Congress, however, lacks both the will and the way to assert a strong view of congressional power to either the courts or executive. (28) Lawmaker motivations cut against both broad assertions of institutional prerogatives and efforts to coordinate with other lawmakers to advance a pro-Congress agenda. Party polarization exacerbates these inclinations. By way of contrast, the unitary structure of the executive incentivizes the President to embrace departmentalism and advance a consistent pro-executive vision of executive power. This Part will initially contrast the incentives of the modern-day executive and Congress; it will then consider more concretely why today's lawmakers have little reason both to think about congressional power and to work together to advance a pro-Congress view of the law.

    1. The Competing Incentives of Congress and the Executive

      The individual and institutional interests of the President are one and the same. Thanks...

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