While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy-based responses to the Supreme Court's constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court's legal holding and the relationship between the proposal and the public policy associated with the Court's decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court's decisions but is limited in its ability to overcome the Court's legal rules.
When members of Congress dislike an opinion announced by the United States Supreme Court, they can express their disapproval in several ways. Congressional responses range from the nearly costless issuance of public statements voicing criticism of the Court to the daunting task of shepherding proposed constitutional amendments through Congress in the hopes of sending amendments to the states that will overcome the Court's constitutional interpretations. Other legislative proposals may reverse statutory interpretations adopted by the Supreme Court or revise policies that have been declared unconstitutional in the hopes of satisfying judicial scrutiny. Instead of attempting to alter the policy announced by the Court, members of Congress may engage in institutional attacks1 designed to weaken the Court. I consider the use of ordinary legislation to limit or modify the impact of constitutional decisions of the Supreme Court. I call these proposals "policy-based responses" to differentiate them from institutional attacks, which are often assumed to be Congress's preferred or only available vehicle for responding to the Court's constitutional decisions. I argue that policy-based responses are a regular and important part of the interaction between Congress and the Supreme Court.
I adopt the well-founded assumption of legislative scholarship that members of Congress are motivated primarily by preferences over policy, either their own or those induced by their constituents (Clausen 1973; Fenno 1973). I predict that, to the extent possible, members of Congress will use the legislative process to refashion policies announced by other branches of government to conform to those preferences (Martin 2001). Constitutional amendments provide one way for Congress to annul judicial interpretations of the Constitution, but Congress has employed this tool with success only four times (Devins & Fisher 2004:23). In order for Congress to send an amendment to the states, a proposal needs the support of supermajorities in both chambers. Ratification requires the assent of three-fourths of the states. Because of these onerous requirements, a constitutional amendment will rarely be a practicable option. I expect, instead, that legislators will attempt to use ordinary legislation to minimize the impact of constitutional Supreme Court decisions with which they disagree.
The analysis presented herein is based on an extensive search of congressional publications for references to legislative proposals that respond to Supreme Court cases in which judicial review was exercised. I find that members of Congress regularly introduce legislation with the goal of affecting the impact of the Court's constitutional decisions. I address three questions about the use of these proposals and their content:
1. What are the characteristics of the constitutional Supreme Court decisions for which Congress considers responsive legislation?
2. Do responsive proposals attempt to reverse the policy and legal impacts of the Court's constitutional decisions?
3. How successful is Congress in its attempts to modify the impact of constitutional decisions of the Supreme Court through ordinary legislation? …