Friday, April 6, 2012
That's me on the left. That's a hydra on the right, the metaphor Deborah Widiss uses in her new article, now available on SSRN.. The title is Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, 90 Tex. L. Rev. 859 (2012), which continues Professor Widiss's focus on the Supreme Court's evolving methodology in interpreting statutes, largely by looking at the Court's employment decisions. Her abstract:
Statutory overrides — that is, amendments to supersede a judicial interpretation of a statute — are the primary mechanism by which Congress signals disagreement with court interpretations; they are essential to protect the separation of powers and the promise of legislative supremacy. But in Gross v. FBL Financial Services, the Supreme Court held that Congress’s override of a judicial interpretation of Title VII did not control the interpretation of identical language in the Age Discrimination in Employment Act, and further that Congress’s “neglecting” to amend the ADEA when it amended Title VII was a clear signal that Congress intended the language in the ADEA to be interpreted differently. The Court instead embraced an interpretation that had been rejected by both Congress and a prior majority of the Supreme Court. Lower courts, following typical rules of statutory interpretation, have quickly applied Gross to reinterpret the causation standard under numerous other employment laws. The Court’s reasoning in Gross improperly cabins the effects of congressional overrides and dramatically aggrandizes the judicial role; it also unmoors the Supreme Court from the rules of precedent that typically constrain judicial interpretation.
Gross and its aftermath illustrate what I call the “hydra problem.” Congress tried, through enacting an override, to supersede a judicial interpretation with which it disagreed. The Court interpreted this action — the metaphorical severing of a head — to permit the rapid growth of new “heads” in numerous other statutes. In Gross, the Court suggested that Congress bears the burden of avoiding the hydra problem by separately amending all statutes to which a disfavored interpretation might be applied. This is an unreasonable expectation. Courts should instead adopt a rebuttable presumption that enactment of an override calls for the (re)interpretation of the preexisting language in the statute amended, and analogous provisions in related statutes, consistent with the meaning endorsed by Congress, so long as the preexisting text can reasonably bear that meaning. This approach would better permit overrides to play their intended role as a check on judicial lawmaking. It would also further independent values of fairness, predictability, and efficiency in the development of statutory law.
As always with Deborah, this piece is well worth the read, and it uncovers a potentially serious new problem in the ongoing tug-of-war between Congress and the Court over the meaning of statutory overrides.
That said, I do have a few thoughts about Hydra, which will appear (imminently, I hope) in See Also, the on-line supplement to the TLR. It's title is The Curious Incident of Grossand the Significance of Dogs that Don’t Bark. I'll post again when it's out and, in the meantime, spare the reader a picture of a nonbarking dog.