Roberts: Congress Can Overturn High Court Rulings

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Did that headline get your attention? It certainly got mine. Given Roberts' recent cautious statements about the "jolt to the legal system" caused by overturning precedents that are just a few decades old, it was rather surprising to see that he is ready to ditch Marbury v. Madison.

When I clicked through to the Los Angeles Times story over which the headline appeared, I saw that it was not merely an error by a copy editor. It was also an error by the two reporters who wrote the story (assuming they saw the edited version before it was posted). According to the lead, "chief justice nominee John G. Roberts Jr. said today it was appropriate for Congress to consider using legislative means to overturn Supreme Court rulings."

But according to the rest of the story, Roberts actually said it was appropriate for Congress, in the wake of Kelo v. New London, to consider legislation aimed at discouraging the use of eminent domain to transfer property from one private owner to another in the name of economic development. One bill, for example, would withhold federal community development grants from cities where such takings are permitted. This sort of legislation does not "overturn" a Supreme Court ruling, since it does not purport to elevate Congress' interpretation of the Constitution above the Court's. Like the Religious Freedom Restoration Act, it aims to provide extra protection for individual rights, beyond what the Court says the Constitution requires.

There may be constitutional problems with such laws to the extent that they improperly impinge on state powers; much of RFRA was overturned on federalism grounds. But there is nothing inherently problematic about restricting federal actions (including spending) in order to better protect individual rights, even when the Supreme Court says such restrictions are not constitutionally required. This is a far cry from asserting that the Supreme Court does not have the final say in applying the Constitution.

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  1. I'm sure that the Times will change the headling any minute now. Positive. They couldn't possibly be looking to imply that Congress can overrule Roe, could they? Nah...

  2. MP, they couldn't possibly not know what the hell they're talking about, could they?

    In my experience, the press will make at least one serious error of fact, and at least one serious misinterpretation of the facts, in every story that related to any specialized field of knowledge.

    If you're a journamalist, and you're covering the Roberts hearing this week instead of the Planning Board, "Congress can overturn Supreme Court rulings" probably sounds a lot like "Congress can pass legislation that undoes the effect of Supreme Court rulings."

    It's like the time I referred to a Banelli Street Sweeper on a gun thread - whoa, easy there fellas!

  3. I don't actually believe that they intentionally wrote that headline in order to mislead people. I do believe that they wanted that headline to be true, i.e. that they were fishing/hoping for Roberts dirt and heard what they wanted to hear.

  4. Well, remember that the Supreme Court isn't just the final arbiter of the Constitution; they're the final arbiter of the United States Code, too. And there's plenty of times in history when Congress has changed the Code in response to a Supreme Court decision.

    Considering I didn't see the question and answer in the proceedings that has been brought up here, though, this may be irrelevant to what Roberts said.

  5. Since when were court decisions accepted as laws?!

    I'm no legal expert, but I thought laws were created through legislation in CONGRESS, not extrapolated from court opinions.

  6. "every story that related to any specialized field of knowledge." How specialized does your knowledge really have to be to grok the distinction between "overturning" a Supreme Court ruling and creating a statutory right that isn't in the Constitution? (Hell, why would you *bother* creating a statutory right if it were already in the Constitution?)

  7. I ain't wunna then lawyers er nuthin', but this was also brought up with regard to Congress's ability to limit the Supreme Court's jurisdiction.

    From an old Kevin Drum article:

    "A3S2 is a section in the constitution that allows Congress to exempt particular areas of law from judicial review, and it's been a wingnut obsession pretty much forever. The basic idea is that you pass a law about, say, gay marriage, and include A3S2 language prohibiting the courts from ruling on marriage issues. That way, they can't rule your shiny new law unconstitutional."

    http://www.washingtonmonthly.com/archives/individual/2005_02/005632.php

    I could be wrong, but I thought I heard on the radio Roberts talking about this, and that it was a view thst some legal scholars held. Again, I could have heard it incorrectly.

  8. Of course Congress can also start the ball rolling on changing the constitution in response to a Supreme court ruling. That would in effect legally overturn a court ruling, and is properly built into the system.

  9. "How specialized does your knowledge really have to be to grok the distinction"

    Well, Julian, we are talking about journamalists. Tell you what, try to explain the difference between a Special Permit and a Variance to a newspaper reporter. Go ahead, give it a shot.

  10. Or a chinook and a coho salmon, for that matter Joe. Or a stream versus an irrigation ditch. My major professor was so smart, he taught his biology students a class in press management.

  11. "How specialized does your knowledge really have to be to grok the distinction between "overturning" a Supreme Court ruling and creating a statutory right that isn't in the Constitution? "

    You'd think somebody covering this would know the difference.

  12. joe,

    If the plain meaning of "overturn Supreme Court decisions" is too specialized for the NYT to understand, what business do they have reporting on global climate issues?

  13. Joe-On behalf of reporters everywhere, fuck you. As it happens, P&Z in on my beat, and I do understand the difference. If I don't understand something, I ask questions until I do. That's the job.

    Sorry if that sounds overly testy, but I'm sick and tired of silly blanket statements about journalists.

    BTW-The person who wrote the blog entry we're all responding to is...wait for it...a journalist. Don't take the stupid mistake of two reporters as indicative of the intelligence level of a whole profession. Finally, I'd invite those who sneer at reporters to spend a week or two as a general assignment reporter before opening their yaps.

  14. "A3S2 is a section in the constitution that allows Congress to exempt particular areas of law from judicial review, and it's been a wingnut obsession pretty much forever. The basic idea is that you pass a law about, say, gay marriage, and include A3S2 language prohibiting the courts from ruling on marriage issues. That way, they can't rule your shiny new law unconstitutional."

    Does it really say that?

    Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    So, rather than trying to parse some general meaning from these phrases, let's make it concrete. Congress passes (and the President signs) a law saying:

    "1) The right to keep and bear arms is hereby dennied to all citizens except the armed forces and law enforcement officers of the United States and the several states. 2) With respect to an establishment of religion, the Southern Baptist Convention shall be the only permissible religion in the United States. 3) As per Article III, Section 2 of the Constitution, no court shall have any power to hear any case in which a party claims that this law is in violation of the Constitution."

    OK, the first 2 clauses are clearly unconstitutional. But the third one says that the courts have no power to do anything about it.

    Now, the first phrase that I highlighted from Art. 3 Sec. 1 says that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution..." If a person says that a law enacted by Congress violates the Constitution, that seems to be a pretty clear case arising under the Constitution.

    OK, but the Congress exempted that case from judicial review, right?

    Well, Art. 3 Sec. 2 only says that the Supreme Court shall have appellate jurisdiction in all other cases, except as provided by Congress. I take it to mean that Congress has the option of sending some cases directly to the Supremes, and saying that other cases are decided at the lower court level.

    Anyway, not only does the text of the Constitution not seem to support their theory, a simple example says that if their theory were right then the Constitution would essentially become meaningless.

    Then again, these are partisans we're talking about, and the wet dream of every partisan is to implement their agenda without regard for the Constitution and shield their actions from scrutiny by the third independent branch of government.

  15. crimethink, the question is not "what business do they have reporting on..." They're newspapers, they have to report on things.

    The question is, what business do they have not understanding? Like emme said, you'd think someone covering these things would know the difference. You'd think.

  16. it was rather surprising to see that he is ready to ditch Marbury v. Madison.

    not to me. rousseauian crusades overturning law is the very point of originalism, as i see it.

  17. ""Congress can overturn Supreme Court rulings' probably sounds a lot like 'Congress can pass legislation that undoes the effect of Supreme Court rulings.'"

    In point of fact, Congress *can* overturn Supreme Court rulings, and pass legislation that undoes the effect of Supreme Court rulings, if the rulings are ones turning on statutory interpretation. Thus, if Congress doesn't like the Supreme Court's rulings that major league baseball is outside the scope of the antitrust laws, all it has to do is pass a law to amend the antitrust statutes by adding "This goes for major league baseball, too" in the appropriate places.

  18. What gets me here is Roberts was talking Government 101 here, and the papers -- and some of the fools on the Committee -- seems to think he's said something profound.

    It's really simple. Laws get made -- by the states or the federal government. Those laws can be challenged in court -- sometimes because people feel they're unconstitutional or because the feel the application isn't fitting the law or because the law conflicts with other laws or perhaps the law is so bloody vague as to be useless.

    The courts then sort out the mess. The court's ruling is only final in terms of a Constitutional issue (and you can always amend that puppy). But it's quite common for decisions to come down that simply state: "The way this law was written is broader than people like. Or narrower. In which case, Congress can bloody well rewrite it if they don't like the consequences".

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