Art. III, Section 2 and the Possibility of a Congressional Ov erride

[RJLipkin at aol.com]

        Thanks Mark, And I applaud the idea of a procedural regulation on 
what division of votes counts as "the Court's decision."  It's not obvious to me 
why Congress could not require a majority, a supermajority, or  unanimity even 
under present circumstances. However, that is just one of the elements, for 
me, in using the "regulations" language.

        The second concerns a congressional override.  I do not think 
Michael's forceful point "Article Three says in no uncertain terms that the judicial 
power is vested in the courts, not in congress" is dispositive.  The reason 
I'm not convinced by Michael's  point is that I think if pushed it will beg the 
question of what (jurisprudentially) counts as "judicial power" in 
contradistinction to "legislative power." To state my point directly, though 
hyperbolically, a congressional override is not judicial power, it is congressional power. 
Of course, I've just begged the question in just the same way I suspect my 
opponents might.) Further, I don't want the issue decided on this point alone.  

        Distinguish between two kinds of congressional regulations of the 
court.  The first is a congressional override.  The Court uses its judicial power 
to decide a case, for instance, the equal protection clause guarantees gays 
and lesbians the right to same-sex marriage.  Congress then says to the Court 
your decision is constitutionally wrong. This raises three possible issues: (1) 
Is this a case of interpretive equality?  If so, how should it be resolved,  
(2) Congress says to the Court your decision is judicially wrong, or (3) 
Congress just says to the Court your decision is wrong without any modifiers. (Of 
course, there are possibilities of both (1), (2), and (3)  playing a role in 
examples of this sort.  But let's ignore these examples now.) Are each of these 
examples ((1),(2), and (3)) examples of Congress usurping the judicial power 
of the Court.  How can we know that Article three, Section 2 should be 
interpreted in that way? Okay, okay let's assume Congress in these examples is 
exercising judicial power.  Let's move to another possibility.

        Suppose Congress can constitutionally pass the following law. "When 
the Court decides an issue and Congress passes legislation negating the Court's 
decision, Congress wins." Is this law one in which Congress is clearly 
exercising judicial power? I confess that I don't think that's obvious. Indeed, it 
could be argued that Congress is simply passing a law that might be necessary 
for it to protect its constitutionally authorized province, say, arguably in 
federalism cases.  But even if not, it is still unclear that if Congress passes 
a law that negates a judicial decision, that this entails Congress is using 
judicial power as distinguished from legislative power. I would think the form 
and content of the law must be examined before we can know for sure.

        Further, the practice of the Court deferring to Congress when 
Congress passes a law that seems to (or actually does) negate a judicial decision can 
arise without a Congressional law mandating it.  (Of course, it might require 
a different Court or at least a different judicial culture.) Consider  
Eichmann or the City of Boerne. Texas v. Johnson overturned a state law banning flag 
desecration. Congress passed a law permitting such laws.  The Court, on its 
own, could have said the following: "Well, you know as a matter of 
constitutional interpretation we think Texas v. Johnson is right on the money (and we have 
a case not yet handed down Eichmann that strikes down the federal law), but 
as a matter of institutional Competence, we think once we've had our say the 
ultimate disposition of the case should be left to the people or their 
representatives. That's how we understand our judicial role. Thus, Eichmann will 
officially remain undecided." The same with Smith and RFRA.  The Court had its 
chance of interoperating the First Amendment's free exercise clause. Yet, Congress 
passed a statute negating the standard in Smith. Is RFRA an example of 
legislative or judicial power? The answer is not obvious to me. Or if it is judicial 
power, how about the following congressional law. "Religious practice should 
be respected except when doing so will cause irreparable harm to individuals or 
society." (Of course critical terms in this statute must be interpreted, but 
for now please don't criticize the precise wording of the statute. I've never 
claimed any talent in drafting legislation.) The Court could have said, and, a 
Court concerned with the interaction between democratic republicanism and the 
institutional roles of governmental agencies would have said: "OK.  We think 
we got the interpretive question in Smith correct.  But Congress is, in 
principle, a much better judge of the people's interpretation of the First 
Amendment, so we will defer.  This case, the City of Beorne, which we've been working 
on, will, like Eichmann, never see the light of day."

        I apologize for going on like this. The thrust of my argument is that 
the procedural dimensions of the "regulations" language can be interpreted in 
a broader manner than merely deciding what kind of vote determines a judicial 
decision.  Indeed, interpreted in this broader manner indicates, perhaps, 
that the "regulations" language has a procedural and quasi-substantive, and thus 
the "regulations" language might warrant a greater inter-institutional 
interaction than we now think possible.

       

                            



Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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