Why Congress Does Not Challenge Judicial Supremacy

By Devins, Neal | William and Mary Law Review, April 2017 | Go to article overview

Why Congress Does Not Challenge Judicial Supremacy


Devins, Neal, William and Mary Law Review


ABSTRACT

Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other way to advance the same policy priorities. Relatedly, party polarization cuts against bipartisan embraces of pro-Congress views of the law and cuts in favor of Democrats and Republicans advancing competing views of congressional authority. Finally, Congress makes use of institutional structures that accentuate lawmaker disinterest in legal questions and treat the courts as the last word in legal disputes. The committee system, the Offices of Legislative Counsel, the Congressional Research Service, and the offices of House and Senate counsel all contribute to Congress's acceptance of judicial supremacy.

Table of Contents

Introduction
I.   Institutional Incentives
     A. The Competing Incentives of Congress and the
        Executive
     B. Lawmaker Motivations
     C. Disunitariness = Disinterest & Disarray
     D. Position Taking, Polarization, and Congressional
        Responses to Judicial Decisions
     E. Wrapping Up
II.  Institutional Structures
     A. Legislative Drafting
     B. Congress in Court
        1. Agency Litigation Authority
        2. The DOJ's Duty to Defend Federal Statutes
        3. The House and Senate Counsel
III. Concluding Observations
     A. The Exceptions Power
     B. The Confirmation Power

INTRODUCTION

Let me start with a confession: I set out to write an article on why Congress affirmatively backs judicial supremacy. After all, there are numerous examples of Congress seeking political cover by explicitly punting issues to the Supreme Court. (1) At the same time, these examples are unrepresentative of the larger whole. They suggest that Congress is actually thinking about the judicial role and the political advantages of a judicial supremacy regime. (2) The truth, however, is that Congress rarely thinks about the courts when enacting legislation. (3) Correspondingly, lawmakers never think about articulating a distinctive pro-Congress view of either Congress's constitutional authority or theories of statutory interpretation. (4) On those rare occasions when Congress contemplates judicial review of its handiwork, the sole focus of lawmakers and staff is on what the courts will do--not what the courts should do. (5) For example, when responding to Supreme Court rulings, lawmakers hardly ever criticize the Court or push the Court to consider a new theory of constitutional or statutory interpretation; instead, lawmakers operate within the boundaries set by the Court. (6)

My Article will explain why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In part, lawmakers are uninterested in abstract questions of institutional power; instead, lawmakers are interested in advancing their vision of good public policy, winning reelection, and gaining personal power within Congress. (7) Relatedly, lawmakers hardly ever have incentive to speak with a unitary voice. (8) Lawmakers who oppose a measure will embrace a narrow view of congressional power; lawmakers who support the measure will back a broad view. (9) Further reflecting Congress's focus on policy goals and not judicial theories, lawmakers and their staff--when drafting legislation--largely delegate legal questions to two court-centric offices within Congress: the Offices of Legislative Counsel and the Congressional Research Service's American Law Division. …

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