Courts don’t solve foreign policy

The United States Constitution sets forth a government that prescribes specific roles for each of its branches. While, constitutionally, Congress is the policy-making branch, the U.S. Supreme Court enters the policy-making arena through statutory interpretation and judicial review decisions. The preferred policies of these two branches of government do not always coincide, causing conflict between the Court and Congress. At such times this conflict can lead to a battle over control of national policy. This paper explains congressional reaction to Supreme Court decisions by relaxing two of the assumptions of the separation of powers game and incorporating changing congressional preferences and context. U.S. Supreme Court decisions tend to be viewed “not as a mere interpretation of law, but a determinative statement of national policy that is, for all practical purposes, irrevocable” (Paschel 1991:144). While the majority of Supreme Court decisions remain untouched by Congress, a number of statutory interpretation and judicial review decisions have been successfully overridden by the legislative branch, making it apparent that Supreme Court decisions are not necessarily final. In certain circumstances Congress is willing to do battle with the Court to achieve their preferred policy. Although successful congressional overrides of Supreme Court decisions are infrequent, their occurrence has generated a body of research that has contributed to our understanding of the interaction between these two branches of government. What is missing from the discourse is an examination that focuses on the introduction of legislation to override Supreme Court decisions 1 . This paper fills that gap, examining the circumstances under which Congress introduces legislation attempting to override a Supreme Court decision. Using an approach which incorporates changing congressional preferences and context this research contributes to our understanding of Court-Congress interaction.

The consequences of the institutional choice are more complex and potentially far-reaching. A decision endorsing the disputed agency action not only allows the agency decision to stand (with whatever policy consequences that entails) but also signals to the lower courts that agencies should be given latitude to take the disputed action. Every decision upholding a disputed agency action expands, ever so slightly perhaps, the ability of agencies to implement their agendas. Because lower courts are supposed to implement the legal doctrines articulated by the Supreme Court, the effects of this institutional choice, whether or not to defer to the agency decision, will ripple throughout the lower courts and should affect the decisions in many disputes. This article continues a line of research begun by Linda Cohen and Matt Spitzer in the 1990s. Cohen and Spitzer began with the insight that Supreme Court decisions evaluating agency actions do more than merely uphold or overturn the action being litigated. These decisions also communicate legal doctrine to the lower courts, sending signals regarding the level of deference they should show to agency decisions. Given the small number of administrative law cases the Supreme Court hears each term, they assert that the signal-sending or doctrinal element of these decisions will have a larger impact on policy than the direct effects on the litigants. Cohen and Spitzer argue that Supreme Court Justices can best achieve their policy-related goals if they consider their ideological relationship with the executive branch and then factor this relationship into their decisions evaluating administrative actions. Their model generally suggests that as the median member of the Court gets ideologically closer to the president, the Court should become more deferential to the administrative action.