Don’t like the decision of the Supreme Court, it can be changed, by congress. That’s right. We know the courts job is to apply the law to the facts. If we had the power to change the process, we can’t change the facts, but we can change the law applied. Change the game, change the outcome. This article (article reference is broken into the White part and the Brown Part), the white part, sheds light on how congress may have the last word when the Supreme Court rules. The Supreme Court doesn’t decide wrong and right, they do decide if the action was legal and sometimes even they have the opinion that their decision was not the right thing for an appellant.
Lilly Ledbetter Act
Lilly Ledbetter was a fresh retiree of the Goodyear company in Alabama. She was a foreman with the company for years and discovered that at the time of retirement she had made a fraction of the pay, and the least, as compared to her equal colleagues. She sued under the Civil Rights Act of 1964. She sued, won back pay and damages in trial, then Goodyear successfully appealed, and the eleventh circuit reversed. The issue was the statute of limitations. The act provisioned for discrete instances and didn’t account for behavior over time. The limit was 180 days after a discrete action such as a termination or failure to promote. The case went to the Supreme Court LEDBETTER v. GOODYEAR TIRE & RUBBER CO. INC., 127 S.Ct. 2162 (2007) and was affirmed for reason the violations were not presented within statute. Called a “statutory ruling”.
Let’s change the out of bounds line
In Justice Ginsberg’s dissent, she pretty much put the ball in congresses court to change the law. It happened. The Lilly Ledbetter Fair Pay Act was passed in 2009. In this case congress righted the wrong. They stepped up and refined the law to prevent another 'slip through the cracks' case. Going back in history, this was common actions for congress in a period between 1978-1998. Congress passed or attached legislature to correct loopholes in the law. They did everything from create an Act to attach a couple sentences to annual Acts such as the National Defense Authorization Act, which is released annually. The corrective action by congress is called a “statutory override”.
What’s next to fix?
In the past 20 years what’s been passed? Not much. There is plenty of opportunity out there though. Seems to be a bipartisan effort, who can argue the law has some space that doesn’t make sense anymore or the country growing as a society would lead you to think some law is just not as applicable as it was meant to be at the time and conditions. This is certainly true for the Voting Rights Act of 1965 as proven by the Supreme Court in 2013 where the court ruled a portion the ’65 Voters Act was no longer true and would burden the states. The court ruled that voting jurisdictions with historical discrimination would not have to get federal approval to change voting laws Shelby County v. Holder, 133 S.Ct. 2612 (2013). This lead to states enacting voter ID laws and Ohio allowing “voter purge” which in a nutshell could remove your registration after 6 years of no activity.
What say you?
• Why do you think focus has shifted since 1998 when statutory override was common?
• The article suggests passing an override isn’t enough, Westlaw and Lexis don’t pick them up. Does the Government create an office to “wrong the rights” and manage a program?
• The Brown Part of the website lists more opportunities for statutory override, browse and give a quick thought on something that interests you
• https://theintercept.com/2020/11/24/congress-override-supreme-court/ (the white pages of the website)
• Westlaw: 127 S.Ct. 2162
• Westlaw: 133 S.Ct. 2612
• https://theintercept.com/2020/11/24/congress-override-supreme-court/ (the brown part of the website at part 2, Civil Rights, Voting Rights)
• Why do you think focus has shifted since 1998 when statutory override was common?
ReplyDeleteI found this study on your site done at Yale that talk about just this. I will quote it rather than summarize. They say it much better. “One study, by Yale law professor William Eskridge Jr. and then-federal law clerk Matthew Christiansen, traces the turning point in the nation’s history of judicial overrides to the mid-1970s, when emboldened post-Watergate Democrats passed major omnibus legislation (like the Tax Reform Act of 1976) that updated laws and rejected various Supreme Court decisions at once. It helped that this new wave of overrides overlapped with big increases in congressional staff; House committee staff increased by two-thirds between 1973 and 1975, and the House and Senate judiciary committees grew by even more.”
For the next 20 years, up until 1998, Eskridge and Christiansen found that the Democratic-controlled Congress was “energized, aggressive, and highly … interventionist in matters of state policy” and therefore “happy to denounce and reverse anti-regulatory” judicial rulings. Popular policy areas targeted for judicial overrides included civil rights, federal jurisdiction, and tax law, but were not limited to those. Even in the polarized decade of the 1990s, Congress overrode more than 80 rulings, more than any in the preceding four decades. But following Clinton’s impeachment in 1998, judicial overrides slowed to a trickle. https://theintercept.com/2020/11/24/congress-override-supreme-court/
• The article suggests passing an override isn’t enough, Westlaw and Lexis don’t pick them up. Does the Government create an office to “wrong the rights” and manage a program?
At one time there was an office of common sense in Utah that tried to address and encourage change that don’t make sense. I like this approach to have one place looking for holes and trying to find a way to fix them.
• The Brown Part of the website lists more opportunities for statutory override, browse and give a quick thought on something that interests you
While there are definitely holes in the clarity of laws I think they need to be addressed head on and not sneaking through the back door. Also from your referenced site “Overrides can be passed on an individual basis, as part of larger omnibus bills, or even tacked on to unrelated appropriations or debt ceiling bills.” It leaves me feeling like there is not enough support to get the change passed so we sneak it in. I know it is idealistic but I would vote for the best practice and have the discussions in the open.