Overruling the Court

December 19, 2001

7:10 PM

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."

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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 decision.

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.