Overruling the Court

One of the myths of our political system is that the
Supreme Court has the last word on the scope and meaning of federal law. But time
and time again, Congress has shown its dissatisfaction with Supreme Court
interpretations of laws it passes--by amending or re-enacting the legislation to
clarify its original intent and overrule a contrary Court construction.

The Supreme Court often insists that Congress cannot really "overrule"
its decisions on what a law means: The justices' interpretation has to be correct
since the Constitution gives final say to the highest court in the land. But
Congress certainly has the power to pass a new or revised law that "changes" or
"reverses" the meaning or scope of the law as interpreted by the Court, and the
legislative history of the new law usually states that it was intended to
"overrule" a specific Court decision.

Often the reversal is in highly technical areas, such as the statute of
limitations in securities-fraud cases, the jurisdiction of tribal courts on
Indian reservations, or the power of state courts to order denaturalization of
citizens. But in the last 20 years, a main target of congressional "overruling"
has been the Supreme Court's decisions in the area of civil rights.

In 1982, for example, Congress amended the Voting Rights Act of 1965 to
overrule a narrow Supreme Court holding in Mobile v. Bolden, a 1980 decision
that addressed whether intentional discrimination must be shown before the act
could be invoked. In 1988, Congress overruled another Supreme Court decision (in
the 1984 case Grove City College v. Bell) by passing the Civil Rights
Restoration Act, which broadened the coverage of Title VI of the Civil Rights Act
of 1964. The legislative history of that law specifically recited that "certain
aspects of recent decisions and opinions of the Supreme Court have unduly
narrowed or cast doubt upon" a number of federal civil rights statutes and that
"legislative action is necessary to restore the prior consistent and
long-standing executive branch interpretations" of those laws.

And in 1991, Congress passed a broad, new Civil Rights Act that specifically
reversed no fewer than five Supreme Court cases decided in 1989--decisions that
severely restricted and limited workers' rights under federal antidiscrimination
laws. Led by Massachusetts Democrat Edward Kennedy in the Senate and New York
Republican Hamilton Fish, Jr., in the House, Congress acted to undo those
rulings, as well as make other changes to federal law that strengthened the
weapons available to workers against discrimination. Despite partisan contention
over the language of certain provisions (which led to last-minute-compromise
language), President George Bush the elder supported the changes. The new law
recited in its preamble that its purpose was "to respond to recent decisions of
the Supreme Court by expanding the scope of relevant civil rights statutes in
order to provide adequate protection to victims of discrimination."


Given the current supreme Court's track record in civil rights
cases, there can be no doubt that congressional remediation is again necessary.
In a series of cases over the past two years, the Court has been giving narrow
readings to various federal civil rights laws. And once again, an attentive
Congress can and should overrule the Court's decisions if the legislators care
about fairness in the operation of government and in the workplace.

The recent cases were decided by identical 5-4 votes: Three
conservative justices (William Rehnquist, Antonin Scalia, and Clarence Thomas)
were joined by two centrists (Sandra Day O'Connor and Anthony Kennedy) to narrow
the reach of the laws at issue. Four liberal justices (John Paul Stevens, David
Souter, Ruth Bader Ginsburg, and Stephen Breyer) dissented in all of the cases,
four of which are described below.

  • Last year, on the grounds of federalism, the Supreme
    Court held in Kimel v. Florida Board of Regents that persons working for
    state governments cannot sue in federal court under the Age Discrimination in
    Employment Act, which Congress adopted in 1967. Such suits, the high court said,
    were constitutionally barred by the 11th Amendment's prohibition of suits against
    states in federal court. This ruling removed 3.4 percent of the nation's total
    workforce from the federal law's protections against age bias--some 5 million
    state employees across the country.

  • On the same basis as the age-discrimination case, the Court held in
    February of this year that state employees cannot sue in federal court under the
    Americans with Disabilities Act. In this ruling, Board of Trustees of the
    University of Alabama v. Garrett,
    state workers who alleged disabilities
    discrimination were relegated to seeking recourse through state courts, where the
    available remedies are often much weaker than those provided under federal law.

  • In April of this year, the Supreme Court narrowed the reach of Title
    VI, the 1964 provision that prohibits recipients of federal financial assistance
    from discriminating on the basis of race, color, or national origin. In
    Alexander v. Sandoval, the Court held that Title VI is violated only
    if a plaintiff proves that the funded party intentionally discriminated on
    the basis of race--an interpretation that runs contrary to the rule for other
    civil rights laws (such as Title VII), which require only a showing of a
    discriminatory impact to trigger enforcement. At the same time, the justices held
    that neither public nor private recipients of federal financial aid who violate
    the nation's antidiscrimination regulations can be sued in federal court. Thus
    the state of Alabama was not vulnerable to suit when it established an "English
    only" requirement for taking a driver's license exam, even though federal
    regulations prohibit such restrictions. The only remedy, the Court held, was
    termination of federal funding to the state entity that violated the regulations
    (a sanction that entails a complicated administrative process).

  • On May 29, the Court decided that civil rights litigants who bring
    suit against the government or an employer cannot collect attorney fees if the
    defendant voluntarily ceases the practice complained of or settles the claim
    before going to trial (the case was Buckhannon Board and Care Home, Inc., v. West
    Virginia Department of Health and Human Services
    ). In 1976, Congress passed
    the Civil Rights Attorneys Fees Award Act to encourage lawyers to take civil
    rights cases as "private attorney generals." Such cases "vindicate public
    policies of the highest order," Congress explained when it passed the law. The
    act specified that the legal fees of "prevailing parties" would be paid by the
    losing party--generally a government that violated the plaintiffs' constitutional
    rights. As Justice Ginsburg pointed out in her dissent in the Buckhannon
    case, Congress enacted the law to "ensure that nonaffluent plaintiffs would have
    effective access to the Nation's courts to enforce ... civil rights laws." The
    effect of the Buckhannon decision is that a government body can tenaciously
    litigate a case until the last minute, then throw in the towel and evade the
    requirement of paying attorney fees. Since lawyers can no longer be sure that
    they'll be paid if they file civil rights suits, this ruling will certainly
    discourage them from taking on such cases, even those that clearly have merit.

    Two of these cases are quite easy to correct. Congress can reverse the Supreme
    Court's decision about attorney fees by simply amending the civil rights law to
    provide that a litigant is considered a prevailing party entitled to fees if the
    lawsuit "was a substantial factor" in remedial action taken by the government and
    the suit brought by the plaintiff had a "substantial basis in fact and law." That
    was the rule generally applied by the lower courts before the Supreme Court

    The Sandoval rule can also be corrected by legislation. Congress could
    amend Title VI to provide that "any person aggrieved by the violation of any
    regulation issued pursuant to this act may bring a civil action in an appropriate
    federal court. Such actions may include suits challenging any discriminatory
    practice or policy that would be deemed unlawful if it has a disparate impact
    upon persons protected by this title."

    The Kimel and Garrett decisions are more difficult to attack. The
    Supreme Court held that the 11th Amendment to the Constitution protects states
    against suits in federal court for age or disabilities discrimination by their
    employees. Although Congress cannot overrule a constitutional determination made
    by the Court, it can condition federal financial assistance on state adherence to
    federal requirements. In 1987 the Supreme Court held in South Dakota v. Dole
    (a 7-2 decision written by Chief Justice Rehnquist, in which Justice Scalia
    joined) that Congress could insist that South Dakota increase the minimum
    drinking age to 21 as a condition of obtaining federal highway funds. In other
    words, while Congress cannot force states to do its bidding, it in effect may
    bribe them to follow federal requirements.

    Thus Congress could condition federal grants under Medicaid, Medicare, or the
    Social Security Act on the states' surrendering their 11th Amendment immunity
    under the federal acts banning discrimination based on age and disability. If a
    state wished to obtain federal funds under various social-welfare provisions, it
    would have to accede to the U.S. antidiscrimination laws and waive its immunity
    from being sued by its employees in federal court. Indeed, the 1986 Civil Rights
    Remedies Equalization Amendment specifically declared that Congress intended for
    states to waive their 11th Amendment immunity in order to receive federal
    financial assistance.

    Congress could use the same device to overrule another recent Supreme Court
    decision: last year's 5-4 holding in United States v. Morrison that the
    civil-remedy provisions of the Violence Against Women Act of 1994 are
    unconstitutional. The majority held that the law exceeded congressional power
    under the Constitution's commerce clause--the first time a federal law had been
    invalidated on that basis since 1936. But Congress can counter the Court's action
    by ensuring that such civil remedies are available to victims of gender-motivated
    acts of violence through state courts. How? By making the federal funds that are
    available through Medicare or Social Security programs contingent on a state's
    provision of such remedies.

    In 1991, Congress and the first President Bush acted courageously to overrule
    manifestly narrow decisions of the Supreme Court that violated a national
    consensus against discrimination by government or by employers. Now that the
    Democrats have control of the Senate, they should make similar corrective
    legislation one of their first objectives. And who knows? This President Bush
    might even follow the lead of his father and endorse the changes.