Partisanship raises stakes of Supreme Court statutory rulings

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Partisanship within Congress has raised the stakes for Supreme Court statutory law rulings, since bipartisan legislative overrides of Supreme Court interpretations have greatly diminished and partisan overriding is much rarer, argues a paper from University of California-Irvine law professor Richard Hasen.

In a paper to be published in the Southern California Law Review, Hasen also warns that a similarly politically polarized Supreme Court in combination with a highly partisan Senate could make a future court nomination a major political crisis and ultimately diminish the public legitimacy of the court.

Hasen's analysis of congressional overrides of Supreme Court interpretation of federal statues--something that requires a new federal law, as opposed to a constitutional override, which requires a new constitutional amendment--shows they fell to 2.8 overrides every 2 years on average from 2001 through 2012 from a recent peak of 12 overrides every 2 years on average from 1975 through 1990.

The court draws heavily for new rulings on the history of legislative overrides. Hasen quotes another legal scholar that justices apply a "super-strong presumption" of stare decisis for statutory rulings since Congress theoretically can always correct an errant court interpretation through new legislation.

Other theories for the decline in statutory overrides besides a polarization within Congress and so an inability to muster enough support to override a Supreme Court ruling except typically without overwhelming partisan support in both chambers and the presidency fail to account for all the facts, Hasen's analysis says. The Supreme Court has recently put out a lower volume of statutory interpretation decisions, but the decline in legislative overrides "greatly outpaces the decline in cases." Also, the decline "does not appear driven by a decline in the amount of overall legislation."

As a result, justices have the last word on statutory interpretation almost as often as they have the last word on constitutional questions despite the latter's far greater hurdles for overriding a ruling. In the short term, this transfer of power from the legislative to the judicial branch might benefit the latter, but political polarization within the Supreme Court itself in addition to Senate partisanship could combine to create dangers to the long term legitimacy of the Court.

Polarization within the Supreme Court is not new, Hasen notes, but what is new is that ideological polarization lines up partisan polarization. Today's conservative justices were nominated by Republican presidents and liberal justices by Democratic presidents.

A public more inclined to view court decisions as partisan decisions made by partisan actors coincides with a Senate more likely to vote for new justices on the basis of their ideology. A nomination for a new justice, such as a replacement for swing voter Justice Anthony Kennedy in which the ideological balance of the court be the outcome, could lead the Senate to take measures such as limiting court terms in order to lower the stakes, Hasen says.

"However, term limits might further solidify the ideological nature of Supreme Court judging by providing a path for presidents to nominate more ideological Justices," he states.

The Senate might also trigger the so-called nuclear option on the filibuster, altering the rules to the chamber to end filibusters by a simple majority. Were they to do so only for judicial nominees, that would give the Senate more control over the court's composition by lowering the hurdles to confirmation. Were the Senate to trigger the nuclear option and have it apply to all legislation, that would give political parties that manage to control both chambers of Congress and the presidency even more power, "subject only to control by an ideologically divided Supreme Court," Hasen says.

For more:
- go to Hasen's paper, "End of the Dialogue? Political Polarization, the Supreme Court, and Congress" on SSRN

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