When Congress Overrules the Court

Abstract

On October 22, 1990, President Bush announced that he would veto the Civil Rights Act of 1990. The announcement met with expected criticism from congressional sponsors of the bill as well as from spokespersons for the civil rights community. While these critics stressed the importance of the legislation for the civil rights movement, the amendments represent another, equally important, legal dimension: a developing institutional conflict between Congress and the Supreme Court. Congress' initiative in passing the Civil Rights Act did not occur in isolation. Rather, it is but one of several recent attempts by Congress to undo what it deems to be objectionable rulings of the Supreme Court. These efforts by Congress to overrule the Court may reveal important tensions in the constitutional relationship between these coordinate branches. Our intention, here, is to understand these recent struggles between Congress and the Court and place them in historical context, relying upon similar struggles that occurred at the dawn of the New Deal. There are, of course, many instances in which Congress has overruled decisions of the Court, most of which have innocent, constitutionally unexceptional, explanations. One of the authors served as a law clerk to Justice Minton, when his decision in a contracts case, Wunderlich v. United States, 1 was overturned by Congress with record-breaking speed. But, as the New Deal era has shown, not all the deeds of the Court and Congress can be innocently explained. There have, for example, been periods of political upheaval or turmoil in which the Court's erroneous interpretations appear to reflect deliberate attempts to frustrate the policy objectives of Congress. Under these circumstances, the dialectic between the