When Congress comes back into session this week, among the unfinished business is the question of what to do about a number of Supreme Court rulings from the spring.
Although the most likely answer is that the deeply politically divided Congress will do nothing at all about recent Supreme Court decisions, the question raises important issues about the constitutional relationship between the Court and the legislative branch and the current health of the system of checks and balances.
The authority of the Court to strike down acts of Congress as unconstitutional goes back at least to 1803 and Marbury v. Madison, a case studied by most law students in their classes on constitutional law. Just how that process of judicial review works today, and how Congress responds, is a subject that should interest students of constitutional law, legislation, federal courts, and other subjects.
It is not uncommon for the Court to strike down federal legislation. In the past sixty years, since the start of the Warren Court in 1953, the Justices have struck down all or parts of federal laws more than one hundred times. The conventional wisdom about this role for the Court was repeated by Chief Justice John Roberts during his confirmation hearing before the Senate Judiciary Committee in September 2005. “The final say on a statute is with Congress, and if they don’t like the Supreme Court’s interpretation of it, they can change it,” he said in response to a question.
Many times in recent decades, Congress has done just that. Although the revision received relatively little notice after a high-profile Court decision, in 1996 Congress passed a new, amended Gun-Free Schools Zone Act after the Supreme Court had invalidated the original law the year before in United States v. Lopez. The new law added the requirement that it applied only to guns that had some connection to interstate commerce and were near schools. In Lopez, a narrow majority of the Court ruled that Congress lacked the power under the Commerce Clause to punish the possession of all guns within one thousand feet of any school because such regulation did not fall under the power to regulate interstate commerce.
There are more recent examples, too. In 2013, Congress passed a revised Stolen Valor Act after the Court invalidated the earlier version in June 2012. By a vote of six to three in United States v. Alvarez, the Court held that the prohibition on making false claims about receiving military honors violated the First Amendment’s protection for freedom of speech. In the new version passed by Congress, it is only a crime to make false claims about military honors if it is done for financial gain or some other profit. It took Congress little time to pass the Animal Crush Video Prohibition Act in 2010. The Supreme Court in United States v. Stevens, also in 2010, ruled that an earlier version of the law violated the First Amendment because it was too broad and prohibited some forms of protected expression. The new law limits prosecution of animal crush videos to those that are obscene and, therefore, not protected by the First Amendment.
What happens, though, when Congress cannot take action, either because of the complexity of the issue or because of deep partisan disagreement? That kind of inaction calls into question the critical working assumption of judicial review of legislation – that Congress can always change the law if it does not like the Supreme Court’s view.
Consider some examples. It has been four years since the Supreme Court ruled in Citizens United v. Federal Election Commission that corporations and labor unions have a First Amendment right to spend money directly in support of political candidates. Many campaign finance reformers and non-profits have railed against the unprecedented sums of corporate and labor dollars the ruling has allowed to flood into federal campaigns. However, Congress has not even come close to taking any action. Sen. Tom Udall (D-N.M.) has introduced a proposed constitutional amendment that would effectively withdraw campaign finance from the realm of the First Amendment, but the proposal is not likely to make it through Congress, where it requires a two-thirds vote in both the House and Senate, let alone to win approval by three-fourths of the states.
Were the proposed amendment to be ratified, it would also deal with a more recent decision that generated some congressional dissatisfaction: McCutcheon v. FEC, in which the Court struck down aggregate limits on how much donors can donate to multiple campaigns. Given the complexity of overcoming the Supreme Court’s First Amendment ruling and the partisan disagreement about the decision, it seems unlikely that Congress will take any action on this case anytime soon.
The Supreme Court’s handling of the Voting Rights Act provides a case study of the weakness of the assumption that Congress can always correct rulings with which lawmakers disagree. In 2009, in Northwest Austin Municipal Utility District Number One v. Holder, in an opinion by the Chief Justice, the Court warned Congress that the historic forms of voting discrimination that justified passage of the landmark civil rights law in 1965 might no longer be sufficient to support continued extension of the statute. “The Act imposes current burdens and must be justified by current needs,” the Chief Justice wrote. The message appeared to be that by deciding the case on other grounds, the Court was giving Congress a chance to revise the formulas encompassed in the law to trigger different remedies for violations of voting rights. But nothing about the message suggested that the Court gave any thought to what might happen if Congress could not agree on revisions in a timely way.
Four years later, the Chief Justice again emphasized the need to base the operation of the Voting Rights Act on current data in Shelby County v. Holder, in which the majority essentially said Congress had failed to act on its invitation of four years earlier and that time was up. The Court struck down the formula used to determine when state and local governments were covered by the Voting Rights Act’s requirements that any changes in election procedures and rules be approved in advance by the Justice Department. Because the formula was outdated, the Court emphasizsed, it was therefore unconstitutional. Chief Justice Roberts made very clear that, in the Court’s eyes, Congress had a chance to act and failed to do so. “Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice” but to strike down the formula in Section 4(b) of the Voting Rights Act as unconstitutional.
Although there are significant civil rights coalitions behind efforts to write a new formula and to revive that portion of the Voting Rights Act, there has been no action in Congress in the fourteen months since the Shelby County decision. And there remains little likelihood of Congress overcoming partisanship, which also implicates regional and federalism differences, to enact revisions to the Voting Rights Act.
The most recent example of stalemate after a Supreme Court ruling may be the aftermath of the June ruling in the case of Burwell v. Hobby Lobby Stores. The Court held that the Religious Freedom Restoration Act, passed in 1993 and subsequently amended, applied to closely held, for-profit corporations and required that they be exempted from the federal Affordable Care Act mandate that employers provide health coverage for contraception for their employees. Sen. Patty Murray (D-Wash) proposed legislation to amend the religious freedom law to make it inapplicable to health care benefits required elsewhere in federal laws. Fifty-six senators, including three Republicans, voted to take up the bill in the Senate in July. But under the Senate’s rules, including the filibuster, it would have taken sixty votes to bring up the legislation and so it failed. It is unlikely that Congress will take any action to reverse or revise the Court’s ruling.
There seems to be no easy answer to this problem. Should the Supreme Court be more cautious about striking down federal laws that trigger highly partisan issues for which Congress is significantly less likely to be able to take action? In the 2009 voting rights case, Chief Justice Roberts repeated the oft-quoted words of Justice Oliver Wendell Holmes in 1927 that reviewing the constitutionality of acts of Congress is “the gravest and most delicate duty that this Court is called on to perform.”
If part of the assumption about the grave duty of judicial review is that Congress can have the last word, it is problematic when gridlock in Congress makes the last word unspoken.
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