This being the first Monday in October, the U.S. Supreme Court is starting its new session. Longtime legal analyst Emily Bazelon uses the occasion to reflect, “Congress Is Supposed to Be More Powerful Than the Supreme Court. Why Isn’t It?“
President Trump’s second term has revealed many weaknesses in America’s political system. This is one of them: It turns out that the government can function (or malfunction) based just on orders of the president and the Supreme Court’s rulings on those orders. Congress is largely irrelevant, if it wants to be.
Increasingly, it seems to want to be.
As the court returns for a new term this week, we are due for another round of debate about the separation of powers — the fight between the executive and the courts, especially. Just as important, though far less frequently noted, is the balance between the Supreme Court and Congress. And that situation is deeply weird.
Here’s how it’s supposed to work but no longer does: Congress writes laws. The courts interprets them. When Congress disagrees with these statutory interpretations, it has the power to pass a new law to override them.
Passing laws, however, is intentionally hard, requiring passage in both Houses of Congress and the signature of the President. The combination of partisan polarization and a routine filibuster, requiring a 60% supermajority in the Senate, has made the former next to impossible.
Constitutional rulings are different: The Supreme Court claimed that it had say over interpreting the nation’s founding document in the case of Marbury v. Madison in 1803. Congress may still have room to respond with a new law, but it can’t just say the court got the Constitution wrong.
Alexander Hamilton presaged judicial review in Federalist 78:
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
It was also the norm in all of the states and had long been the basis of the English Common Law. So, while Marbury has some definite flaws, the assertion that it is the responsibility of the courts to determine whether legislative acts are constitutional is not something the justices made up out of whole cloth.
Today, Republicans in the House and the Senate have the power to give the president — the leader of their party — what he wants, even when the Supreme Court disagrees. Over the summer, for example, the justices handed Trump defeats on two cherished priorities, imposing global tariffs and resetting the rules for mail-in voting. A lower-court judge blocked Trump’s appointees on the board of the Kennedy Center from putting his name on it, which he appears to care about even more.
The judge in the Kennedy Center case, Christopher R. Cooper, underscored in his ruling what power Congress has. “Simply put,” he wrote, the board “cannot install memorials for President Trump or anyone or anything else at the Kennedy Center without Congress’s blessing.” Yet Republicans have not moved a bill to authorize adding Trump’s name.
Not only do they know if it wouldn’t pass the Senate, I strongly suspect they have no desire to associate themselves with raising taxes or rebranding the Kennedy Center.
In a sense, Congress’s inaction is easy to explain. It’s an increasingly do-nothing institution. The Senate rule requiring 60 votes to break a filibuster gives Republicans an excuse to distance themselves from some of the least popular decrees of an unpopular president. Trump also often disregards Congress. There was no reason for lawmakers to do anything, he said, when the Supreme Court struck down his tariffs last year.
It’s a powerful combination, to be sure: a President who (with rare exception) doesn’t care about passing laws and a Congressional majority that doesn’t want to pass laws that would anger their constituents.
But this is not really about Trump. He and the current MAGA Congress have revealed — and accelerated — a structural flaw that has been developing for a couple of decades. Several presidencies ago, Congress stopped asserting authority to override major Supreme Court decisions. Its passivity has continued no matter which party is in power.
By 2013, it was already “exceedingly rare” for Congress to reject a court decision, Richard Hasen, a law professor at the University of California, Los Angeles, wrote that year. Hasen charted the drop. From 1975 to 1990, Congress overrode an average of 12 Supreme Court decisions per term. The number fell to an average of 2.8 per term from 2001 to 2012. Since then, it has fallen nearly to zero, Hasen says — “certainly, nothing I’ve seen shows the numbers have turned around.”
As Hasen himself acknowledges, part of this stems from the Court issuing fewer opinions. From 1975 to 1990, the Court decided as many as 202 cases a year, averaging around 180. From 2001 to 2012, they averaged around 80, breaking 100 only once. Still, the decline in Congressional overturns isn’t fully explained by the number of opinions.
Congress’s inaction is upsetting the balance of power between Congress — the branch that, according to the Constitution, is supposed to be most responsive to the electorate and the strongest — and the judiciary, which is supposed to be most removed and weakest. It’s a distortion of the separation of powers that has largely had the effect of moving American governance to the right.
Yes, although that’s a function of Republicans appointing six of the nine Justices, not the institution of the judiciary. (Granted, the unrepresentative nature of both the Electoral College and the Senate contributed significantly to that.)
One of the court’s most contentious decisions last term was Louisiana v. Callais, which gutted part of the Voting Rights Act. The history of the landmark civil rights law since its enactment in 1965 shows how things have changed in Congress’s push-and-pull with the court. The Supreme Court upheld it in the 1966 case Katzenbach v. Morgan. The 14th Amendment, the justices argued, gave Congress the power to enforce the promise of equal rights, a responsibility that the court respected.
But in 1980, a different court struck back with a ruling that required states to prove that laws intentionally discriminated on the basis of race. The ruling made part of the Voting Rights Act nearly toothless. Congress objected — and did something about it by amending the law so a plaintiff could win with proof that a state voting practice had a discriminatory effect. This back-and-forth was what the Constitution’s framers envisioned, and it continued for decades. The court enforced Congress’s amendment in 1986. In 2006, Congress reauthorized the Voting Rights Act by overwhelming majorities.
Seven years later, however, in Shelby County v. Holder, the Supreme Court gutted another key provision of it. This time, though, Congress did not pass an amendment or a new voting rights bill in response, even later when Democrats controlled the White House, the House and the Senate. The resulting power vacuum surely made it easier for the conservative justices to dismantle the remainder of the Voting Rights Act last spring — by reimposing the standard of proof of discriminatory intent in Louisiana v. Callais.
The main reason a new voting rights bill failed to pass is the same reason Congress has stopped responding to the court: partisan polarization, which ramped up in the 2000s. As conservative Democrats and liberal Republicans went extinct, bipartisan overrides ended. When one party is in control and can reject a court ruling on its own, the filibuster remains a barrier to such a bill passing.
Indeed, although we often fall into the trap Bazelon does, it is simply not the case that Democrats “controlled” the Senate when the Shelby ruling came down. Senator Frank Lautenberg had died ten days before, and he was replaced by Jeffrey Chiesa. That brought the makeup down to 52 Democrats, 46 Republicans, and 2 “Independents” who caucused with the Democrats. Even when Cory Booker replaced Chiesa months later, there were only 55 Democratic votes; that’s still five shy of “control.”
In their new book, “Supremacy,” Nikolas Bowie and Daphna Renan, Harvard law professors, argue that Congress is passive because the Supreme Court made it so. “The court’s interpretation of Congress’s statutory authority has gotten stingier and stingier,” Renan said. Congress stopped responding to the court out of “learned helplessness.”
Far be it from me to disagree with two Harvard Law professors who wrote a book on the subject, but the simpler explanation is that Congress’ learned helplessness is a function of getting 60 votes under a system of lockstep partisan voting, not the Supreme Court making them their bitch.
In the last few years, the Supreme Court’s conservatives have suggested that when they strike down statutes, they are inviting Congress to pass laws in response. Liberals in the minority, on the other hand, say the court is simply taking more power for itself. The dispute came to a head in a 2022 case in which the conservative majority said that the Clean Air Act did not authorize the Environmental Protection Agency to implement the Obama administration’s plan to limit carbon emissions at power plants. The majority imposed a relatively new standard, the “major questions doctrine,” saying that Congress was required to clearly state what it wanted the E.P.A. to do and that it had not done so. “A decision of such magnitude and consequences rests with Congress itself,” Chief Justice John G. Roberts Jr. wrote for the majority.
In a concurrence, Justice Neil M. Gorsuch said the major questions doctrine ensured that Congress, not agencies, makes laws. Dissenting, Justice Elena Kagan said that Congress chose to broadly delegate authority in the Clean Air Act and that the court was getting in the way. “The court substitutes its own ideas about policymaking for Congress’s,” she wrote.
Interestingly, West Virginia v. EPA was a ruling based on statutory, not constitutional, interpretation—overturning a decades-old unanimous Supreme Court ruling. At the time, I noted many of the same issues Bazelon highlights:
I am far from an expert on environmental policy or what Congress intended by the phrase “waters of the United States.” One could, I suppose, argue that the Supreme Court should view statutes narrowly and then let Congress remedy the ruling by passing new statutes. The obvious counter is that, for the last two decades or so, Congress has been virtually non-functional. While I could preach that either way, the fact that Congress has let an incredibly expansive—and unanimous!—SCOTUS interpretation stand since 1985 would seem like a pretty strong indicator that it was the correct interpretation of legislative intent. (Especially since it came during the Reagan administration with a Republican-majority Senate and a much less sorted partisan atmosphere and we’ve had multiple periods with a Republican President and Republican majorities in both Houses since.)
[…]
This particular ruling seems to be yet another step in trying to dismantle the so-called Administrative State. I’m actually quite sympathetic to the notion that Congress delegating so much quasi-legislative power to Executive branch bureaucracies violates the letter and spirit of the Constitution. But, even while the Framers were alive, the Supreme Court issued common sense rulings that balanced the 1787 text with the practicalities of governance. There’s simply no way to run a 21st Century continental superpower without bureaucratic experts having significant regulatory flexibility.
Again, I suppose, the rote answer is “Amend the Constitution using the provisions of Article V.” Realistically, though, that’s essentially impossible.
Back to Bazelon:
Are the conservative justices frustrating Congress in service of a regressive agenda? Bowie and Renan think so. “Only legislation — creative new national laws — can begin to address the many profound challenges facing the United States,” they write. In a constitutional democracy, judges are supposed to preserve the rule of law by preventing the other branches from acting illegally. But Bowie and Renan think this Supreme Court is too supreme. “It is of course true that Congress may enact dangerous laws,” they write. “But there is little we can do about them when only the Supreme Court is allowed to determine which laws are dangerous.”
It has been thus since 1803. Alas, the Roberts Court has been increasingly rogue, using pet ideological theories to override decades- and even centuries-old precedents.
The midterm elections may not alter this dynamic much. No matter who controls Congress, Trump will retain his veto power. But the game changes if Democrats win the 2028 election and take control of the presidency and the House and the Senate. “If the Democrats have a trifecta, the gap between the Supreme Court and Congress will be much larger,” Hasen said. “There will be huge pressure on Congress to address it.”
They had such a trifecta after the 2020 elections and chose not to use it. They didn’t have the votes to end the filibuster, much less pack the court.
In contrast to expanding the court, passing laws that reject its decisions one by one would represent a return to what was, until recently, normal. To defend its work, Congress could shield legislation from future adverse rulings by requiring a supermajority of justices to strike a law down. The Constitution arguably gives Congress this power. If the Supreme Court disagrees, the country would learn how far the justices are willing to go to box Congress in. The resulting debate could lay the groundwork for the more drastic option of expanding the number of justices.
The courts would rightly strike such a provision down. Could it spur Congress to pack the Court? Sure. Color me skeptical, though. Indeed, the problem we’re trying to solve here is a Congress that can’t or won’t act.
