End of the dialogue? political polarization, the supreme court, and congress

Southern California Law Review

Volumn 86, Issue 2, 2013, Pages 205-262

  Hasen, Richard L ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84878447910     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (181)

1. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2675 (2012) (Scalia, J., dissenting) ("The ACA is over 900 pages long.").
2. Transcript of Oral Argument, Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (Nos. 11-393, 11-400)
3. 2012 U.S. Trans. LEXIS 28, at *72 (2012).
4. David M. Herszenhorn & Robert Pear, Final Votes in Congress Cap Battle on Health Bill, N.Y. TIMES, Mar. 26, 2010, at A17, available at http://www.nytimes.com/2010/03/26/health/policy/ 26health.html;
5. Robert Pear & David M. Herszenhorn, Obama Hails Vote on Health Care as Answering 'the Call of History,' N.Y. TIMES, Mar. 22, 2010, at A1, available at http://www.nytimes.com/ 2010/03/22/health/policy/22health.html;
6. Josh Gerstein, Pork Greased Reform's Passage, POLITICO (Dec. 22, 2009), http://www.politico.com/news/stories/1209/30877.html.
7. Olivier Knox, Scalia Mocks Health Care Law 'Cornhusker Kickback' Provision-That No Longer Exists, YAHOO! NEWS (Mar. 28, 2012), http://news.yahoo.com/blogs/ticket/scalia-mocks-health-care-law-cornhusker- kickback-provision-205148292.html.
8. Robert Pear, Repeal of Health Care Law Approved, Again, by House, N.Y. TIMES, July 12, 2012, at A11, available at http://www.nytimes.com/2012/07/12/ health/policy/house-votes-again-to-repeal-health-law.html.
9. Linda Greenhouse, Never Before, N.Y. TIMES OPINIONATOR (Mar. 21, 2012, 9:00 PM), http://opinionator.blogs.nytimes.com/2012/03/21/never-before/ ("Republican officeholders in all 26 states joined together in the case now known as United States Department of Health and Human Services v. State of Florida. In 22 of those states, the officeholder was the attorney general. In four states with Democratic attorneys general (Nevada, Wyoming, Iowa and Mississippi), Republican governors filed in their own names.").
10. Ryan Lizza, Why Romney Won't Repeal Obamacare, THE NEW YORKER NEWS DESK (June 28, 2012), http://www.newyorker.com/online/blogs/newsdesk/2012/06/why- romney-wont-repeal-obamacare.html.
11. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2607-08 (2012); id. at 2668-77 (Scalia, J., dissenting).
12. Jim Malone, Analysts: Supreme Court Health Care Ruling Helps Obama, VOICE OF AM. (June 28, 2012), http://www.voanews.com/content/analysts-say-supreme- court-health-care-ruling-helps-obama/1349054.html.
13. Kevin Robillard, Poll: GOP Down on John Roberts, Dems Up, POLITICO (July 16, 2012), http://www.politico.com/news/stories/0712/78562.html.
14. The presidency's strength against Congress also has been growing as a result of political polarization, which has provided an opening for unilateral presidential action on both domestic and foreign affairs. See Matthew N. Beckmann & Anthony J. McGann, Navigating the Legislative Divide: Polarization, Presidents, and Policymaking in the United States, 20 J. THEORETICAL POL. 201, 201-02 (2008);
15. Neal Devins, Presidential Unilateralism and Political Polarization: Why Today's Congress Lacks the Will and the Way to Stop Presidential Initiatives, 45 WILLAMETTE L. REV. 395, 396-97 (2009);
16. Neal Devins & David E. Lewis, Not-So Independent Agencies: Party Polarization and the Limits of Institutional Design, 88 B.U. L. REV. 459, 491-96 (2008);
17. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2342-47 (2006);
18. Jide Nzelibe, Partisan Conflicts Over Presidential Authority, 53 WM. & MARY L. REV. 389, 392-95 (2011). Although the Bush presidency was known for its "unitary executive" theory and assertions of executive power, President Obama also has taken some notable steps to assert unilateral power, such as his recent executive order which will allow "[h]undreds of thousands of illegal immigrants who came to the United States as children [to] be allowed to remain in the country without fear of deportation and able to work."
19. Julia Preston & John H. Cushman, Jr., Obama to Permit Young Migrants to Remain in U.S., N.Y. TIMES, June 16, 2012, at A1, available at http://www.nytimes.com/2012/06/16/us/us-to-stop-deporting-some-illegal- immigrants.html?hp. He took this step following the inability of Congress to pass legislation accomplishing similar ends. The Supreme Court's decisions on executive power also affect congressional-presidential relations. These important developments are beyond the scope of this Article.
20. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006).
21. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
22. Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009).
23. See Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
24. U.S. CONST. art. I, § 7.
25. U.S. CONST. art. III, § 2.
26. Mike Allen, House Passes Constitutional Amendment to Ban Flag Burning, WASH. POST, June 23, 2005, available at http://www.washingtonpost.com/wp-dyn/ content/article/2005/06/22/ AR2005062202155.html.
27. See Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010).
28. Warren Richey, Constitutional Amendment Required to Undo Citizens United, Senate Panel Told, CHRISTIAN SCI. MONITOR (July 24, 2012), available at http://www.csmonitor.com/USA/Politics/ 2012/0724/Constitutional-amendment- required-to-undo-Citizens-United-Senate-panel-told.
29. I am using the definition of "override" set forth in William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 332 n.1 (1991) ("A congressional 'override' includes a statute that: (1) completely overrules the holding of a statutory interpretation decision, just as a subsequent Court would overrule an unsatisfactory precedent; (2) modifies the result of a decision in some material way, such that the same case would have been decided differently; or (3) modifies the consequences of the decision, such that the same case would have been decided in the same way but subsequent cases would be decided differently. . . . '[O]verride' [does not] include statutes for which the legislative history-mainly committee reports and hearings-does not reveal a legislative focus on judicial decisions.").
30. For a detailed and critical look at these canons, see Michael E. Solimine & James L. Walker, The Next Word: Congressional Response to Supreme Court Statutory Decisions, 65 TEMP. L. REV. 425, 428-33 (1992).
31. William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1366 (1988).
32. Flood v. Kuhn, 407 U.S. 258 (1972).
33. WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 640 (4th ed. 2007).
34. Flood, 407 U.S. at 284.
35. Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 NOTRE DAME L. REV. 511, 520 & n.32 (2009).
36. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982).
37. quoting Lorillard v. Pons, 434 U.S. 575, 580 (1978).
38. Justice Scalia and Bryan Garner give qualified support to this rule in their 2012 book. ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 322-26 (2012). However, they do not base it in legislative agreement, but instead on the fact that "members of the bar practicing in that field reasonably enough assume that, in statutes pertaining to that field, the term bears this same meaning. . . . This footing is sounder than the fanciful presumption of legislative knowledge."
39. Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
40. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).
41. Faragher, 524 U.S. at 804 n.4 ("We are bound to honor Meritor on this point not merely because of the high value placed on stare decisis in statutory interpretation, but for a further reason as well. With the amendments enacted by the Civil Rights Act of 1991, Congress both expanded the monetary relief available under Title VII to include compensatory and punitive damages, and modified the statutory grounds of several of our decisions. The decision of Congress to leave Meritor intact is conspicuous. We thus have to assume that in expanding employers' potential liability under Title VII, Congress relied on our statements in Meritor about the limits of employer liability. To disregard those statements now (even if we were convinced of reasons for doing so) would be not only to disregard stare decisis in statutory interpretation, but to substitute our revised judgment about the proper allocation of the costs of harassment for Congress's considered decision on the subject.") (citations omitted).
42. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2668 (2012) (Scalia, J., dissenting) (emphasis added). The dissenters would have struck down the entire health care law, including nongermane provisions such as one requiring chain restaurants to display nutritional content: The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated-hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so-called 'Christmas tree,' a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which. To sever the statute in that manner would be to make a new law, not to enforce an old one. This is not part of our duty.
43. JEB BARNES, OVERRULED?: LEGISLATIVE OVERRIDES, PLURALISM, AND CONTEMPORARY COURT-CONGRESS RELATIONS (2004);
44. Lori Hausegger & Lawrence Baum, Behind the Scenes: The Supreme Court and Congress in Statutory Interpretation, in GREAT THEATRE: THE AMERICAN CONGRESS IN THE 1990S 224, 224-247 (Herbert F. Weisberg & Samuel C. Patterson eds., 1998);
45. Richard A. Paschal, The Continuing Colloquy: Congress and the Finality of the Supreme Court, 8 J.L. & POL. 143, 198-205 (1991);
46. Note, New Evidence on the Presumption Against Preemption: An Empirical Study of Congressional Responses to Supreme Court Preemption Decisions, 120 HARV. L. REV. 1604 (2007).
47. See, e.g., Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263 (1990);
48. Thomas G. Hansford & David F. Damore, Congressional Preferences, Perceptions of Threat, and Supreme Court Decision Making, 28 AM. POL. Q. 490 (2000);
49. Virginia A. Hettinger & Christopher Zorn, Explaining the Incidence and Timing of Congressional Responses to the U.S. Supreme Court, 30 LEGIS. STUD. Q. 5 (2005);
50. Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463 (1992).
51. For some skepticism about the approach, see Jeffrey A. Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 AM. POL. SCI. REV. 28 (1997).
52. Nancy C. Staudt, René Lindstädt & Jason O'Connor, Judicial Decisions as Legislation: Congressional Oversight of Supreme Court Tax Cases, 1954-2005, 82 N.Y.U. L. REV. 1340, 1401 (2007).
53. See generally Deborah A. Widiss, Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, 90 TEX. L. REV. 859 (2012).
54. But see Bertrall L. Ross, II, Against Constitutional Mainstreaming, 78 U. CHI. L. REV. 1203, 1228 (2011) ("[O]verrides are exceedingly rare, making it risky to rely on them as a means of ensuring consistency between the Court's statutory interpretations and legislative preferences. In fact, one scholar . . . famously argued [in 1960] that statutory overrides are so rare that the Court's interpretation of statutes is 'hardly less "final" than the Court's decisions interpreting the Constitution.'").
55. James J. Brudney, Distrust and Clarify: Appreciating Congressional Overrides, 90 TEX. L. REV. SEE ALSO 205, 212 (2012).
56. Sheryl Gay Stolberg, Obama Signs Equal-Pay Legislation, N.Y. TIMES, Jan. 29, 2009, available at http://www.nytimes.com/2009/01/30/us/politics/ 30ledbetter-web.html.
57. Jeff Zeleny, Occasional Smoker, 47, Signs Tobacco Bill, N.Y. TIMES, June 23, 2009, at A15, available at http://www.nytimes.com/2009/06/23/us/politics/ 23obama.html?-r=0.
58. The Job Creation and Worker Assistance Act of 2002, Pub. L. No. 107-147, 116 Stat. 21 (2002)
59. included a reversal of Gitlitz v. Commissioner, 531 U.S. 206 (2001), a case involving "narrow and technical" tax issues concerning the "correct method for determining basis in S Corporation stock."
60. H.R. REP. NO. 107-251, at 52 (2001);
61. H.R. REP. NO. 107-367, at 3 (2002).
62. The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005)
63. included a provision reversing a Supreme Court case on the habeas corpus rights of immigrants accused of crimes, INS v. St. Cyr, 533 U.S. 289 (2001).
64. H.R. REP. NO. 109-72, at 173-76 (2005).
65. The Trademark Dilution Revision Act of 2006, Pub. L. No. 109-312, 120 Stat. 1730 (2006)
66. eased the standard of proof for trademark holders in dilution claims, overruling Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003).
67. H.R. REP. NO. 109-23, at 5 (2005).
68. The OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524 (2007)
69. reversed a major Supreme Court opinion on attorney's fees in public-interest litigation, Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598 (2001)
70. but only as to attorney's fees in litigation related to FOIA requests. H.R. REP. NO. 110-59, at 4 (2007) (discussing an earlier version of the Act containing the same relevant language as the Act ultimately passed).
71. The Leahy-Smith America Invents Act of 2011, Pub. L. No. 112-29, 125 Stat. 284 (2011), "responds to the decision of Holmes Group, Inc., v. Vornado Air Circulation Systems, Inc., by conferring plenary authority on the U.S. Court of Appeals for the Federal Circuit to hear all patent appeals from lower courts."
72. H.R. REP. NO. 109-407, at 3 (2006);
73. H.R. REP. NO. 112-98, pt. 1, at 81 (2011)
74. explicitly endorsing the earlier H.R. REP. NO. 109-407's explanation "for abrogating Holmes".
75. The Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, 123 Stat. 1617 (2009)
76. reversed two Supreme Court cases dealing with the standard for proving federal money laundering violations. S. REP. NO. 111-10, at 4, 10 (2009)
77. reprinted in 2009 U.S.C.C.A.N. 430, 438.
78. The Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758 (2011)
79. reversed a 1960 decision, Hoffman v. Blaski, 363 U.S. 335 (1960)
80. to craft a more permissive venue rule in certain federal cases. H.R. REP. NO. 112-10, at 23-24 (2011)
81. reprinted in 2011 U.S.C.C.A.N. 576.
82. ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008).
83. The Act's language rejected Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)
84. Toyota Motor Manufacturing, Kentucky, v. Williams, 534 U.S. 184 (2002).
85. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577 (2006).
86. The Act's language reversed two Supreme Court cases, Georgia v. Ashcroft, 539 U.S. 461 (2003)
87. Reno v. Bossier Parish School Board, 528 U.S. 320 (2000), which "misconstrued Congress' original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by section 5 of such Act."
88. H.R. REP. NO. 109-478, at 2 (2006). The 2006 Amendments were intended to "restore the original purpose to Section 5 with respect to intentionally discriminatory voting changes."
89. See Chai R. Feldblum, Kevin Barry & Emily A. Benfer, The ADA Amendments Act of 2008, 13 TEX. J. C.L. & C.R. 187, 195-96 (2008) ("The first serious breakthrough for the ADA Restoration Act happened in the summer of 2006. Congressman Jim Sensenbrenner (R-WI), then Chair of the House Judiciary Committee, conveyed his interest in sponsoring a bill that would restore the broad coverage of disability under the ADA. Congressman Sensenbrenner's wife, Cheryl Sensenbrenner, had been on the board of the AAPD since 2003 and was an enthusiastic supporter of the ADA Restoration Act. . . . Having a senior Republican Member of Congress and Chair of the House Judiciary Committee express his interest in sponsoring an ADA Restoration Act significantly changed the political dynamics around the possible success of such a bill.");
90. Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 YALE L.J. 174, 180-81 (2007) ("One cannot overstate the importance of the unlikely leadership of James Sensenbrenner, Chairman of the House Committee on the Judiciary, in pushing through the legislation. He wanted the reauthorization of the Voting Rights Act to occur on his watch, and, consistent with his leadership style on other issues, nothing was going to stand in his way. Pursuant to the rules of the Republican Conference, however, his term as Chairman was to expire at the end of 2006, a year before section 5 of the VRA was scheduled to sunset. Therefore, the timetable for the legislation was moved up a year, with House hearings held between October 2005 and May 2006.").
91. SAMUEL R. BAGENSTOS, LAW AND THE CONTRADICTIONS OF THE DISABILITY RIGHTS MOVEMENT 51-54 (2009).
92. Richard H. Pildes, Political Avoidance, Constitutional Theory, and the VRA, 117 YALE L.J. POCKET PART 148, 151 (2007).
93. Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009).
94. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161 (2000);
95. Family Smoking Prevention and Tobacco Control Act § 3(1);
96. H.R. REP. NO. 111-58(I) (2009)
97. reprinted in 2009 U.S.C.C.A.N. 468, 470
98. noting a 2000 Supreme Court case finding that the FDA lacked authority over tobacco products and quoting language appearing in Brown & Williamson, 529 U.S. at 161.
99. Duff Wilson, Senate Approves Tight Regulation Over Cigarettes, N.Y. TIMES, June 12, 2009, at A1, available at http://www.nytimes.com/2009/06/12/ business/12tobacco.html;
100. Duff Wilson, Congress Passes Measure on Tobacco Regulation, N.Y. TIMES, June 13, 2009, at B3, available at http://www.nytimes.com/2009/06/13/business/ 13tobacco.html?-r=0.
101. On the Cloture Motion S.Amdt.1247 to H.R.1256 (Family Smoking Prevention and Tobacco Control Act), GOVTRACK (June 8, 2009), http://www.govtrack.us/ congress/votes/111-2009/s204.
102. See generally Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006);
103. Hamdan v. Rumsfeld, 548 U.S. 557 (2006);
104. John Yoo, Congress to Courts: "Get Out of the War on Terror," WALL ST. J., Oct. 19, 2006, at A18, available at http://www.aei.org/article/ society-and-culture/congress-to-courts-get-out-of-the-war-on-terror/.
105. For the House totals, see Final Vote Results for Roll Call 508 (Military Commissions Act), OFFICE OF THE CLERK OF THE U.S. HOUSE OF REPRESENTATIVES (Sept. 29, 2006, 2:47 PM), http://clerk.house.gov/evs/2006/roll508.xml.
106. For the Senate totals, see U.S. Senate Roll Call Votes 109th Congress-2nd Session, U.S. SENATE BILL CLERK, http://www.senate.gov/legislative/LIS/roll- call-lists/roll-call-vote-cfm.cfm?congress=109&session=2&vote=00259 (last visited Jan. 15, 2013).
107. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
108. Lily Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009).
109. Stephanie Mencimer, Lilly Ledbetter: Obama's Newest Ad Star, MOTHER JONES (Sept. 23, 2008, 9:44 AM), http://www.motherjones.com/mojo/2008/09/lilly- ledbetter-obamas-newest-ad-star.
110. For the House totals, see House Vote #37 in 2009, S. 181 (111th): Lilly Ledbetter Fair Pay Act of 2009, GOVTRACK, http://www.govtrack.us/congress/votes/ 111-2009/h37 (last visited Jan. 4, 2013).
111. For the Senate totals, see Senate Vote #14 in 2009, S. 181 (111th): Lilly Ledbetter Fair Pay Act of 2009, GOVTRACK, http://www.govtrack.us/congress/ votes/111-2009/s14 (last visited Jan. 4, 2013).
112. Rasul v. Bush, 542 U.S. 466, 484-85 (2004).
113. Eric Schmitt, Senate Approves Limiting Rights of U.S. Detainees, N.Y. TIMES, Nov. 11, 2005, at A1, available at http://www.nytimes.com/2005/11/11/ politics/11detain.html.
114. Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act of 2006, Pub. L. No. 109-148, 119 Stat. 2680 (2006)
115. codified at 42 U.S.C. § 2000dd (2006).
116. Eric Schmitt & Tim Golden, Lawmakers Back Use of Evidence Coerced from Detainees, N.Y. TIMES, Dec. 17, 2005, at A21, available at http://www.nytimes.com/2005/12/17/ politics/17detain.html?-r=0.
117. Carl Hulse & Eric Schmitt, Negotiators Say Differences Over Ban on Abuse Remain, N.Y. TIMES, Dec. 12, 2005, at A19, available at http://www.nytimes.com/ 2005/12/12/politics/12abuse.html. Finally, there is one override that is difficult to classify into one of the three categories.
118. The Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (2005), was a major piece of legislation.
119. One relatively minor provision changed the rules for assessing the citizenship of an unincorporated association for purposes of diversity jurisdiction. In changing the standard, Congress arguably overruled a 1965 Supreme Court case, United Steelworkers of Am., AFL-CIO v. R. H. Bouligny, Inc., 382 U.S. 145 (1965).
120. The bill was supported mainly by Republicans. Only nineteen Democratic Senators (and one Independent Senator, Jim Jeffords, who was a Republican but then left the party and caucused with the Democrats) voted for the bill. Senate Vote #9 in 2005, S.5 (109th): Class Action Fairness Act of 2005, GOVTRACK (Feb. 10, 2005), http://www.govtrack.us/ congress/votes/109-2005/s9. This seems to stand on the cusp of the three categories.
121. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2604-08 (2012).
122. To take another recent example, Congress passed the Animal Crush Video Prohibition Act of 2010, Pub. L. No. 111-294, 124 Stat. 3177 (2010)
123. in response to United States v. Stevens, 130 S. Ct. 1577 (2010), which held that an earlier statute barring depiction of animal cruelty violated the First Amendment.
124. See 156 CONG. REC. S7653-54 (daily ed. Sept. 28, 2010) (statement of Sen. Patrick Leahy). While this was not a statutory override, it does illustrate that there are some instances in which even a polarized Congress may find common ground against the Supreme Court.
125. citing Maher v. Int'l Paper Co., 600 F. Supp. 2d 940, 950 n.5 (W.D. Mich. 2009)).
126. Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH. L. REV. 80 (2001) (exploring recent judicial activism and the corresponding disrespect of Congress).
127. Nw. Austin Mun. Util. Dist. No. One v. Holder (NAMUDNO), 557 U.S. 193, 229 (2009) ("The burden remains with Congress to prove that the extreme circumstances warranting § 5's enactment persist today. A record of scattered infringement of the right to vote is not a constitutionally acceptable substitute.").
128. Richard L. Hasen, Avoidance and Anti-Avoidance by the Roberts Court, 2009 SUP. CT. REV. 181 (analyzing how the Court avoided making a constitutional decision in NAMUDNO).
129. I computed the data using the Résumé of Congressional Activity for each Congress. Résumé of Congressional Activity, U.S. SENATE, http://www.senate.gov/pagelayout/reference/two-column- table/Resumes.htm (last visited Jan. 4, 2013).
130. See also Ezra Klein's WonkBlog, which alerted me to this data set. Ezra Klein, 14 Reasons Why This Is the Worst Congress Ever, WASH. POST (July 13, 2012), http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/07/13/13-reasons- why-this-is-the-worst-congress-ever/.
131. The measure I use for "major legislation," David Mayhew's count based primarily upon year-end press coverage, is controversial. See SARAH A. BINDER, STALEMATE: CAUSES AND CONSEQUENCES OF LEGISLATIVE GRIDLOCK 79 (2003) (noting that Mayhew and his critics disagree on whether the consequence of major legislation differs in times of divided or united government).
132. On the relationship of Mayhew's laws and political polarization, see Nolan McCarty, The Policy Effects of Political Polarization, in THE TRANSFORMATION OF AMERICAN POLITICS: ACTIVIST GOVERNMENT AND THE RISE OF CONSERVATISM 223, 237-40 (Paul Pierson & Theda Skocpol eds., 2007).
133. NOLAN MCCARTY, KEITH T. POOLE & HOWARD ROSENTHAL, POLARIZED AMERICA: THE DANCE OF IDEOLOGY AND UNEQUAL RICHES 183 (2006) ("Polarization appears to reduce output across a broad spectrum of possible legislation."). For purposes of this Article, Mayhew's rough measure seems adequate enough to measure whether the pattern of passage of major legislation mirrors the override patterns in Congress.
134. Mayhew originally compiled data through 1991 for his book, DAVID MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND INVESTIGATIONS, 1946-1990 (1991), and posted that data, along with updates on major legislation (for the second edition of his book) through 2008 on his website.
135. David Mayhew, Datasets for Divided We Govern (1991), http://pantheon. yale.edu/~ dmayhew/data3.html (last visited Jan. 4, 2013). He supplied the 2009-2010 list of major legislation to me via email, as it is not yet posted on his site.
136. On the reasons for the decline in the Court's docket over time, see Ryan J. Owens & David A. Simon, Explaining the Supreme Court's Shrinking Docket, 53 WM. & MARY L. REV. 1219 (2012). Chief Justice Roberts recently opined that the overall number of Supreme Court cases may be dropping because of a supposed drop in the amount of "major legislation" passed by Congress.
137. Jeannette Lee, Chief Justice Notes Lack of Major Legislation Passed by Congress, U~T SAN DIEGO (May 4, 2007), http://legacy.utsandiego.com/news/ politics/20070504-0318-wst-chiefjustice-alaska.html ("'No one actually knows why the number of cases we are taking is declining,' said Roberts . . . . 'I think there really are three significant reasons. The first is the lack of any major legislation coming out of Congress in the last couple of decades.'"). Mayhew's data are inconsistent with this hypothesis.
138. THE SUPREME COURT DATABASE, http://scdb.wustl.edu/index.php (last visited Jan. 4, 2013).
139. The database is based upon data originally coded by Harold J. Spaeth. The Genesis of the Database, THE SUPREME COURT DATABASE, http://scdb.wustl.edu/ about.php (last visited Jan. 4, 2013).
140. An Update on Political Polarization (Through 2011), VOTEVIEW BLOG (Jan. 30, 2012), http://voteview.com/blog/?p=284.
141. Tea Party Darling Cruz Wins Texas' US Senate Race, ASSOCIATED PRESS, Nov. 7, 2012, available at http://www.kvue.com/news/Tea-party-darling-Cruz-wins- Texas-US-Senate-seat-1775 70921.html.
142. Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 CALIF. L. REV. 273, 287-97 (2011).
143. Chris Cillizza, Think This Congress is Bad? Just Wait., WASH. POST (Aug. 1, 2012, 11:20 AM), http://www.washingtonpost.com/blogs/the-fix/post/think-this- congress-is-bad-just-wait/2012/08/ 01/gJQAvdTKPX-blog.html
144. Neal Devins, Party Polarization and Congressional Committee Consideration of Constitutional Questions, 105 NW. U. L. REV. 737, 782 (2011) ("[P]arty polarization has played a significant role in the decline in constitutional hearings in every congressional committee except the Judiciary Committees.").
145. Josh Gerstein, Voting Rights Act Under Siege, POLITICO (Feb. 19, 2012, 7:06 AM), http://www.politico.com/news/stories/0212/73058.html;
146. Richard L. Hasen, Online VRA Symposium: The Voting Rights Act, Congressional Silence, and the Political Polarization, SCOTUSBLOG (Sept. 10, 2012, 11:45 AM), http://www.scotusblog.com/2012/09/online-vra-symposium-the- voting-rights-act-congressional-silence-and-the-political-polarization/.
147. Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25 (1996).
148. On the conditions in which Congress is likely to amend significant legislation, see generally Forrest Maltzman & Charles R. Shipan, Change, Continuity, and the Evolution of the Law, 52 AM. J. POL. SCI. 252 (2008).
149. The statistics in this section come from Tom Goldstein's SCOTUSblog StatPack. Tom Goldstein, Stat Pack, Final, October Term 2011, at 14, SCOTUSBLOG (June 30, 2012), http://sblog.s3.amazonaws.com/wp-content/uploads/2012/06/SB- five-to-four-OT11-final.pdf.
150. Gonzales v. Carhart, 550 U.S. 124 (2007).
151. See Grutter v. Bollinger, 539 U.S. 306 (2003).
152. Adam Liptak, College Diversity Nears Its Last Stand, N.Y. TIMES, Oct. 16, 2011, at SR4, available at http://www.nytimes.com/2011/10/16/sunday-review/ college-diversity-nears-its-last-stand.html.
153. See Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010).
154. See Boumediene v. Bush, 553 U.S. 723 (2008).
155. Supreme Court Nominations, Present-1789, U.S. SENATE, http://www.senate.gov/pagelayout /reference/nominations/Nominations.htm (last visited Jan. 4, 2013).
156. See generally Richard H. Pildes, Is the Supreme Court a "Majoritarian" Institution?, 2010 SUP. CT. REV. 103, 139-42 (noting the lag-time issue).
157. Adam Liptak & Allison Kopicki, Approval Rating for Justices Hits Just 44% in Poll, N.Y. TIMES, June 7, 2012, at A1, available at http://www.nytimes. com/2012/06/08/us/politics/44-percent-of-americans-approve-of-supreme-court-in- new-poll.html.
158. For a careful assessment of how the Court's legitimacy has fared in the wake of its controversial decision in Bush v. Gore, 531 U.S. 98 (2000)
159. James L. Gibson, Gregory A. Caldeira & Lester Kenyatta Spence, The Supreme Court and the US Presidential Election of 2000: Wounds, Self-Inflicted or Otherwise?, 33 BRIT. J. POL. SCI. 535 (2003). The question is whether the Court which survived a crisis of legitimacy after the 2000 election would be able to survive a new crisis at a time of increased polarization and partisan realignment.
160. See, e.g., David L. Franklin, Why Did Roberts Do It? To Save the Court, SLATE (Jun. 28, 2012, 3:51 PM), http://www.slate.com/articles/news-and-politics/ jurisprudence/2012/06/john-roberts-broke-with-conservatives-to-preserve-the- supreme-court-s-legitimacy.html.
161. Adam Liptak, In Supreme Court Term, Striking Unity on Major Cases, N.Y. TIMES, Jun. 30, 2012, available at http://www.nytimes.com/2012/07/01/us/supreme- courts-recent-term-a-new-phase.html ("In the wake of the blockbuster Citizens United decision, which by a 5-to-4 vote along ideological lines opened the door for corporations and unions to spend as much as they like to support or oppose political candidates, the court was accused of naked partisanship for seeming to favor Republican interests.").
162. Ronald Dworkin, A Bigger Victory Than We Knew, N.Y. REV. OF BOOKS, July 13, 2012, available at http://www.nybooks.com/articles/archives/2012/aug/16/ bigger-victory-we-knew/ ("The Court will have the opportunity to overrule its 2003 decision allowing state universities to take an admission candidate's race into account, as one factor among others, in seeking a diverse student body. The conservative Justices might wish to abolish affirmative action altogether, or to impose more stringent restrictions on it. They will also have the opportunity to reverse lower courts by upholding the Defense of Marriage Act, which forbids federal agencies to treat gay marriages as real, for example by allowing a gay couple to file a joint income tax return. The same Justices will also be asked to strike down an important part of the Voting Rights Act of 1965, which requires states with particularly bad voting rights records to seek federal permission for new changes in their election laws. No doubt, moreover, they will soon find a chance further to constrict or even to abolish abortion rights. Roberts may want to blunt the anticipated accusations of political partisanship that any right-wing decisions in these cases will likely attract by supporting Obama's health care program now. If so, he will have been immeasurably helped by his new enemies in the right-wing media who are painting him as a secret liberal, or as a turncoat villain with a deteriorating mind.").
163. Lee Epstein, Jeffrey A. Segal & Chad Westerland, The Increasing Importance of Ideology in the Nomination and Confirmation of Supreme Court Justices, 56 DRAKE L. REV. 609, 610 (2008).
164. 151 CONG. REC. S10365-66 (daily ed. Sept. 22, 2005) (statement of Sen. Barack Obama), available at http://www.gpo.gov/fdsys/pkg/CREC-2005-09-22/pdf/ CREC-2005-09-22-pt1-PgS10 365.pdf.
165. Nancy Gibbs, Hill vs. Thomas: An Ugly Circus, TIME MAGAZINE, Oct. 21, 1991, available at http://www.time.com/time/magazine/article/0,9171,974074,00. html.
166. U.S. Senate Roll Call Votes 109th Congress-1st Session, U.S. SENATE, http://www.senate.gov/legislative/LIS/roll-call-lists/roll-call-vote-cfm.cfm? congress=109&session=1&vote=00245 (last visited Jan. 5, 2013).
167. U.S. Senate Roll Call Votes 109th Congress-2nd Session, U.S. SENATE, http://www.senate.gov/legislative/LIS/roll-call-lists/roll-call-vote-cfm.cfm? congress=109&session=2&vote=00002 (last visited Jan. 5, 2013).
168. U.S. Senate Roll Call Votes 111th Congress-1st Session, U.S. SENATE, http://www.senate.gov/legislative/LIS/roll-call-lists/roll-call-vote-cfm.cfm? congress=111&session=1&vote=00262 (last visited Jan. 5, 2013).
169. U.S. Senate Roll Call Votes 111th Congress-2nd Session, U.S. SENATE, http://www.senate.gov/legislative/LIS/roll-call-lists/roll-call-vote-cfm.cfm? congress=111&session=2&vote=00229 (last visited Jan. 5, 2013).
170. On Justice Kennedy's importance as a "super median" Justice, see Lee Epstein & Tonja Jacobi, Super Medians, 61 STAN. L. REV. 37 (2008).
171. John Steele Gordon, A Filibuster That Goes Around Comes Around, COMMENTARY (May 20, 2011, 1:55 PM), http://www.commentarymagazine.com/2011/05/ 20/filibuster-that-goes-around-comes-around/;
172. Meredith Shiner, Senate GOP Filibusters Goodwin Liu, POLITICO (May 19, 2011, 2:41 PM), http://www.politico.com/news/stories/0511/55320.html.
173. For histories and analyses of this period, see generally Michael Gerhardt & Richard Painter, "Extraordinary Circumstances": The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform, 46 U. RICH. L. REV. 969 (2012);
174. Carl Tobias, Filling the Judicial Vacancies in a Presidential Election Year, 46 U. RICH. L. REV. 985 (2012);
175. Carl W. Tobias, Postpartisan Federal Judicial Selection, 51 B.C. L. REV. 769 (2010).
176. See William A. Galston, Political Polarization and the U.S. Judiciary, 77 UMKC L. REV. 307, 323 (2008) ("In the meantime . . . de facto governance by supermajorities in the Senate should continue. We simply see no other means of restraining the possibility that now, by the slimmest of margins, presidents may imbed fellow partisans on the Supreme Court for spans of a quarter-century or more.");
177. John O. McGinnis & Michael B. Rappaport, The Judicial Filibuster, the Median Senator, and the Countermajoritarian Difficulty, 2005 SUP. CT. REV. 257, 258 (describing that Senate filibuster "will tend to make Justices more moderate, where moderate means having a jurisprudential view closer to the view held by the median Senator").
178. See generally Lee Epstein et al., The Changing Dynamics of Senate Voting on Supreme Court Nominees, 68 J. POL. 296 (2006) ("[E]xplor[ing] the extent to which the Bork nomination has affected the decisions of U.S. Senators.").
179. For a skeptical view of the importance of the Bork controversy on more recent judicial nomination battles, see SARAH A. BINDER & FORREST MALTZMAN, ADVICE & DISSENT: THE STRUGGLE TO SHAPE THE FEDERAL JUDICIARY 7-9 (2009).
180. For a review and critique of the various term limits proposals, see generally Mary L. Clark, Judicial Retirement and Return to Practice, 60 CATH. U. L. REV. 841 (2011). Some of the proposals would require constitutional amendment, and the precise nature of the proposals is beyond the scope of this Article.
181. It would only be internally majoritarian. Because each state gets two senators regardless of population, and some states have vastly larger populations than others, some filibusters actually could promote (voter) majority rule. See generally FRANCES E. LEE & BRUCE I. OPPENHEIMER, SIZING UP THE SENATE: THE UNEQUAL CONSEQUENCES OF EQUAL REPRESENTATION (1999) (examining the effects of Senate apportionment on political outcomes and realities).