Texas Law Review
Deborah Widiss continues to make important contributions in an area of statutory interpretation that has been largely neglected: the consequences of congressional overrides. Professor Widiss previously demonstrated how the Supreme Court and lower courts often confine the reach of statutes that purposefully override prior court decisions, thereby reviving aspects of the overridden judicial interpretations as ―shadow precedents.‖ In Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, Professor Widiss addresses the Supreme Court‘s further expansion of judicial power in the aftermath of congressional disapproval. Faced with the override of its textual interpretation in one employment discrimination statute, the Court inferred from this repudiation that it could approach on a clean slate identical but unamended language in a closely related statute. Professor Widiss deftly demonstrates that the Court‘s decision to ―grow a new head‖—ignoring both Congress‘s purpose when enacting the override and the Court‘s own shadow precedent when construing the same language—is unjustified in separation-of-powers terms and subversive from a rule-of-law perspective. Professor Widiss‘s analysis focuses on Supreme Court decisions in the employment discrimination area. As she explains, the hydra and shadowprecedent problems are especially likely to arise in this field for two reasons: numerous statutes addressing parallel antidiscrimination concerns tend to be interpreted in pari materia, and overrides occur with some frequency.5 But the Supreme Court‘s willingness to minimize or distort the meaning of congressional overrides extends to other areas of law as well.6 My Response adopts a Congress-centered view of overrides. It starts from a core premise that these overrides signify Congress‘s distrust of the Court. Once Congress concludes that the traditional ―faithful agent‖ norm for construing a statute is inoperative, the breakdown has important implications. When considering the meaning of an override enactment, judges should discount the value of court-centered interpretive assets such as ordinary language analysis or the canons of construction. Indeed, judicial reliance on these textualist resources is often associated with overrides in the first instance. Rather, courts construing new text that reflects Congress‘s disapproval of prior judicial interpretation should pay particular attention to congressionally generated evidence explaining the nature and contours of that disapproval. This evidence may appear in a textual statement of findings and purpose, but it is more likely to be part of a conference report, committee report, or other legislative history. Professor Widiss‘s proposed solution to the hydra problem calls for courts to adopt a canon-like rebuttable presumption, applying Congress‘s signaled meaning to shared language ―so long as the [text in question] can reasonably bear‖ the meaning Congress has identified. In the override setting, this approach seems unduly deferential to the judicial branch. Professor Widiss recognizes that it is hazardous to trust that courts will undertake responsible statutory interpretation on an issue where they have already acted irresponsibly in Congress‘s eyes. My proposal would tether courts more closely to Congress‘s expressions of purpose and intent when construing its amended text. As explained below, legislative history accompanying congressional overrides is especially likely to reflect Congress‘s institutional views. Any risk that the formulation of these congressional expressions will be unrepresentative or insincere is minimal and can be readily controlled. Moreover, legislative record evidence accompanying override text aptly illustrates why the larger debate about legislative history as an interpretive resource should focus on which factors lend it greater or lesser probative weight, rather than on shopworn arguments about threshold admissibility. Part II explains the interbranch implications of overrides, and why Congress‘s attitude toward a court it has overridden is appropriately one of distrust. Part III considers the options before Congress for alleviating its distrust by clarifying any ambiguity or silence regarding the scope of an override. I agree with Professor Widiss that textual clarification is generally not a realistic alternative. I then discuss why canons or presumptions are no more practicable, and why purposive statements and legislative history— subject to adequate review—should be the preferred option.
James J. Brudney,
Distrust and Clarify: Appreciating Congressional Overrides, 90 Tex. L. Rev. 205
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/168