Academic journal article Duke Law Journal

Congress as Culprit: How Lawmakers Spurred on the Court's Anti-Congress Crusade

Academic journal article Duke Law Journal

Congress as Culprit: How Lawmakers Spurred on the Court's Anti-Congress Crusade

Article excerpt

Poor Congress. Twenty-seven of its laws have been struck down in just over six years. (1) According to the New York Times, Congress is now "The High Court's Target." (2) And to law professors, the Court is increasingly "obliterating a role for Congress as a separate institution" (3)--so much so that examining the "Causes of the Recent Turn in Constitutional Interpretation" and sorting out whether it is time to bring the "Constitution in Exile" in from the cold seem anything but academic exercises. (4)

Notwithstanding this hue and cry, Congress seems a bit oblivious to its fate. Although the Democratically controlled Senate Judiciary Committee may soon take recent Supreme Court decisionmaking into account when confirming President George W. Bush's judicial nominees, Congress has yet to strike back at the Court in any meaningful way. Indeed, rather than condemn the Court and launch a counter-offensive, Congress has paid little notice to the Court's decisionmaking. If anything, as I will argue in this Essay, Congress had been (and still may be) spurring the Court into action by signaling its indifference to the constitutional fate of its handiwork. First, Congress, through word and deed, increasingly treats the Court as if it is the ultimate interpreter of the Constitution. Second, unless responding to a Supreme Court decision invalidating federal legislation, Congress has shown little interest in taking Court rulings into account when crafting constitutionally problematic laws. Third, by slowing down the confirmation process, by failing to increase the salaries of federal judges, and by disregarding calls to limit federal court litigation to matters that are truly national, Congress has made the job of being a federal judge less desirable.

For all these reasons, the Court has had little incentive to accommodate Congress and, if anything, it may see the invalidation of some federal statutes as a way both to assert its own power and to pay Congress back for its insensitive management of the courts. Furthermore, there has been little reason for the Justices to fear reprisal. Congress's rhetoric emphasizes the supremacy of the Court's interpretation of the Constitution. Moreover, the Justices' invalidation of federal statutes has left intact analogous state programs and, for the most part, allowed Congress to revisit issues by recrafting the invalidated statutes.

In calling attention to how Congress's attitudes toward both the Court and the Constitution may have factored into the Court's decisionmaking, I see my project as complementing Christopher Schroeder's examination of recent decisions invalidating federal statutes. (5) Specifically, just as the social norm of distrust in the federal government affects the Court's understanding of the deference it owes Congress, (6) the Court is likewise affected by its "inside the Washington, D.C., beltway" impressions of Congress.

Before turning to my examination of Congress's role in precipitating the current constitutional moment, (7) I think it useful to take note of how the 1930s Congress--through sloppy legislative drafting--prompted some of the Court's anti-New Deal activism. In other words, to the extent that today's Congress is fueling a return to the "exiled" pre-New Deal Constitution, the past is certainly prologue.


Congress played an instrumental role both in prompting the Court repudiate several early New Deal statutes and in facilitating the Court's subsequent embrace of the New Deal. (8) Consider, for example, two statutes invalidated by the Court--the Railroad Retirement Act of 1934 (9) and the Frazier-Lemke Farm Debt Relief Act of 1934. (10) Congress, when enacting the Retirement Act, "whipped the legislation through," with the House "consider[ing] it for only forty minutes before registering its approval," (11) Because Congress failed, among other things, to build a record to support the measure's impact on interstate commerce, Justices sympathetic to the statutory scheme complained that the government did not present its case in a convincing way. …

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