February 9, 2009
Statutory Interpretation of Congressional Overrides
Deborah A. Widiss, a visiting assistant professor at Brooklyn law school, posted Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009) on SSRN. The abstract:
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. 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. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using several examples from employment discrimination jurisprudence, 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. 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 rule that overridden interpretations are no longer binding on lower courts.
I haven't had a chance to read this yet, called to my attention by Ted McClure, librarian extraordinaire at Phoenix Law, but she seems to have spotted an interesting potential issue. On the face of the abstract, I agree that Congress cannot "erase" a precedent, but, just as clearly, if Congress changes a statute from language that had been interpreted as "you can do x" to an express statement that "you cannot do x" (to take the extreme example), any judicial effort to "keep" the precedent sounds to me like a matter of failure to abide by the judicial role...
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