How to Counteract the Court

In partnership with The Intercept

From 1979 until her retirement in 1998, Lilly Ledbetter worked at Goodyear Tire and Rubber’s plant in Gadsden, Alabama. Once she had left the job, she learned a disturbing fact. When Ledbetter had started, her supervisor salary was comparable to that of men in similar positions. But with each performance review, the men she worked alongside got bigger raises, and she gradually fell further and further behind. By the time she retired, she was earning $3,727 a month, hundreds of dollars less than the lowest-paid man in her position, and significantly below the average man.

Ledbetter took Goodyear to court, alleging a blatant violation of Title VII of the Civil Rights Act, which guarantees equal treatment in the workplace. But in 2007, the Supreme Court held that the statute of limitations on her claims had expired, and she could no longer seek redress. She would have had to file her claim shortly after Goodyear hired her, the Court ruled. This was an absurd request—Ledbetter didn’t know how she was being cheated until she neared retirement—and it served to gut the ability of any woman to reasonably enforce the law.

The Court had issued what’s known as a statutory ruling, which is distinct from a constitutional ruling. In other words, the Court had not deemed the law itself to be unconstitutional, but merely ruled that the way the statute had been written rendered it unavailable to Ledbetter.

Supreme Court Justice Ruth Bader Ginsburg wrote a dissent that urged Congress to intervene. The Court’s interpretation, Ginsburg said, was out of step with modern wage discrimination and the realities of the workplace. She recommended Congress amend the law, and fix the Court’s “parsimonious” reading, so workers like Ledbetter could have a shot at restitution. Ginsburg added: “[T]he ball is in Congress’ court.”

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Ledbetter became a proxy for the cause of equal pay for equal work, and Democrats pledged to fight the ruling the first chance they got. And they did, rewriting the statute so that the clock would start ticking on the statute of limitations each time a discriminatory paycheck was issued, not at the time an employee was first hired. The very first piece of legislation President Barack Obama signed in 2009 was the Lilly Ledbetter Fair Pay Act.

What makes Ledbetter so unusual is that Democrats have not similarly fought equally absurd yet consequential rulings from the Court, instead throwing their hands up in despair at the unfairness of a particular decision and then moving on.

But a joint review by The Intercept and The American Prospect of dozens of Court cases finds dozens of statutory rulings similar to Ledbetter’s that Congress could overturn simply by tweaking the statute to remove whatever ambiguity the Court claimed to find in its text. Even where the Court has ruled on constitutional grounds, there is often much room left to legislate the boundaries, just as conservatives have done in relation to Roe v. Wade (1973) and abortion restrictions. From salvaging the Voting Rights Act gutted by Shelby County v. Holder (2013) to protecting workers’ free-speech rights on the job to safeguarding reproductive rights, the list of cases awaiting a creative Congress runs long.

Overrides can be passed on an individual basis, as part of larger omnibus bills, or even tacked on to unrelated appropriations or debt ceiling bills. Even the Affordable Care Act, which is currently under judicial review yet again, could be rescued from the Court’s clutches with a simple legislative tweak. Most of the legislation necessary to overturn these decisions is short, just a few lines to reinforce congressional intent in a way that the judiciary cannot distort it.

These statutory overrides offer a road map for progressives left paralyzed by the Court’s new composition, with the installation of Amy Coney Barrett as a sixth conservative justice. Congress can place an important and ever-needed check from a co-equal branch on an increasingly conservative judiciary, which has not shied from defanging legislation, especially regulatory law. Just as the Court sets the boundaries of congressional intent, Congress can move those boundaries.

Since the death of Ginsburg in September, the left has debated various options for reforming what many see as an overly partisan judiciary. Some have called for increasing the number of justices to help restore the Court’s ideological balance. Others have suggested term limits, or requiring a supermajority for certain decisions. In mid-October, then–presidential candidate Joe Biden said that if elected, he would convene a bipartisan group of scholars to make recommendations on Court reform.

While changing the rules and the makeup of the judiciary holds promise, demoralized activists should not lose sight of Congress’s power to temper or reverse existing Court decisions. Statutory overrides and chipping away at conservative constitutional decisions should be part of any future progressive agenda, and the set of demands brought to negotiations by the White House and Democrat-controlled House of Representatives.

Federal lawmakers have for too long accepted the rulings of the Supreme Court as intractable, when they have the power to respond.

Overriding judicial decisions, while always an important tool in Congress’s legislative toolbox, has fallen by the wayside over the last two decades. One study, by Yale law professor William Eskridge and then–federal law clerk Matthew Christiansen, traces the turning point in the nation’s history of judicial overrides to the mid-1970s, when emboldened post-Watergate Democrats passed major omnibus legislation (like the Tax Reform Act of 1976) that updated law and rejected various Supreme Court decisions at once. It helped that this new wave of overrides overlapped with big increases in congressional staff; House committee staff increased by two-thirds between 1973 and 1975, and the House and Senate Judiciary Committees grew by even more.

For the next 20 years, up until 1998, Eskridge and Christiansen found that the Democratic-controlled Congress was “energized, aggressive, and highly … interventionist in matters of state policy” and therefore “happy to denounce and reverse antiregulatory” judicial rulings. Popular policy areas targeted for judicial overrides included civil rights, federal jurisdiction, and tax law, but were not limited to those. Even in the polarized decade of the 1990s, Congress overrode more than 80 rulings, more than in any of the preceding four decades. But following President Bill Clinton’s impeachment in 1998, judicial overrides slowed to a trickle.

Federal lawmakers currently take something of a piecemeal approach to judicial overrides. Several recent bills that have passed the House override Court decisions as part of more comprehensive larger legislation, like the Protecting the Right to Organize Act and the For the People Act. But Congress has yet to take up the mantle of congressional overrides as an organized, concerted strategy to take back power.

Some observers, like University of California, Irvine law professor Rick Hasen, predict that judicial overrides would likely require near-unified control of Congress and the presidency, like Democrats had in 2009 when they passed the Lilly Ledbetter Act. In other words, whether Democrats retake the Senate following two Georgia runoffs in January could have a major impact on their ability to get judicial overrides through the legislative grinder, especially as many areas of once bipartisan lawmaking, particularly civil rights, have grown more polarized.

However, despite Congress’s hyper-partisanship, there may be some opportunity for lawmakers to take action on judicial overrides where there’s bipartisan agreement. Moreover, even if Democrats can’t push multiple judicial overrides as stand-alone legislation, lawmakers could try to tack fixes onto must-pass legislation like the annual National Defense Authorization Act. (These bills—known in congressional jargon as “riders”—are a common way lawmakers leverage the appropriations process to push pet projects through each year.)

Some of this is about finding the right window of opportunity, but a great deal is about refocusing the minds of federal lawmakers, who have for too long accepted the rulings of the Supreme Court as intractable, when they have the power to respond in many cases. “The energy has just not always been there,” said Charlotte Garden, a professor at the Seattle University School of Law who specializes in labor and employment law. Congress should be reinvigorated to use its power, and not simply sit back in resignation.

For lasting progressive change, history shows us that simply passing a judicial override won’t be enough. University of Indiana law professor Deborah Widiss found that legal research services like Westlaw and LexisNexis do not reliably detect congressional overrides, especially if lawmakers do not explicitly identify in the law which case their new statute overturns. Advocacy groups will need to vigorously educate attorneys and judges about them, or the overrides could go ignored for years by the courts. “You might assume that all you have to do is change the law, but my research suggests courts don’t always implement even really prominent overrides,” Widiss says, pointing to the ADA Amendments Act of 2008, which updated the Americans With Disabilities Act of 1990.

While the future of judicial reform is hazy, holding courts accountable to changes is a challenge that lawmakers and activists, working together, can meet. By zeroing in on statutory decisions, Congress can reclaim its power, and advance change for millions. Here are several areas where progress can be made.

Reproductive Rights

While current legislative momentum for reproductive rights is focused on overturning the Hyde Amendment—a federal provision that since 1976 has barred Medicaid funding for abortion services—and the long-term desire to codify Roe v. Wade into legislation, there are other statutory measures lawmakers could take to strengthen reproductive rights.

One way is by clarifying that the Religious Freedom Restoration Act of 1993—the statute that was at the heart of the Burwell v. Hobby Lobby case in 2014—cannot be used as a tool of discrimination. RFRA was itself a statutory response to a poor 1990 decision that many groups felt weakened religious freedom, particularly for religious minorities. But advocates say RFRA has been twisted and abused over the last decade, not only allowing organizations to deny contraception coverage to their employees, but permitting the firing of transgender workers, and enabling federally funded child welfare providers to deny potential foster and adoptive parents deemed the “wrong” religion. In the Hobby Lobby case, five justices concluded that RFRA permits for-profit companies to deny contraception coverage to employees based on a religious objection.

To fix all this, Congress could quickly pass the Do No Harm Act, an existing bill backed by several civil and reproductive-rights groups that would clarify that RFRA is meant to protect religious freedom without allowing harm inflicted on others, such as denying groups contraception. It was introduced in the House in 2019 by Reps. Joe Kennedy (D-MA) and Bobby Scott (D-VA) and in the Senate by Sen. Kamala Harris (D-CA), the vice president–elect. To date, it has 215 House and 31 Senate co-sponsors.

Brigitte Amiri, a deputy director at the American Civil Liberties Union’s Reproductive Freedom Project, said the Do No Harm Act would be a “more robust” way to get at cases like Hobby Lobby because it would bar RFRA lawsuits if they discriminate against third parties.

Voting Rights

Perhaps the most consequential legislation passed in the 20th century lost its potency in a Supreme Court decision decided on statutory grounds, Shelby County v. Holder (2013). The Court held in a party-line 5-4 vote that section 4(b) of the Voting Rights Act of 1965, which required jurisdictions with histories of discrimination to get federal preclearance before changing voting laws, put untenable burdens on states, because the conditions at the time of the legislation are no longer true.

The decision was a disaster for voting rights advocates. In the aftermath, dozens of states implemented voter ID laws, including a North Carolina law that a federal court said discriminates against Black voters “with almost surgical precision.” The Leadership Conference on Civil and Human Rights documented that after Shelby, more than 1,600 polling places were closed. One of the most blatant flourishes of this renewed ability to curtail voting rights was Georgia Gov. Brian Kemp’s gubernatorial campaign. While secretary of state, Kemp removed 1.5 million voters from the rolls, as well as another 500,000 during his campaign for governor.

Courts have found at least ten instances of intentional discrimination in voting rights decisions since Shelby, a direct counter to Justice Roberts’s majority opinion that conditions in 1965 no longer exist.

Like in the Ledbetter decision, the minority dissent made clear that an updated preclearance formula—which the Court called unconstitutional—can and should be designed by Congress. The John R. Lewis Voting Rights Act of 2020, which overrides Shelby County, among other voting rights protections, has already passed the House. The bill would update the statutory language for preclearance, as well as add new voter protections.

Democrats’ first bill of the 116th Congress was the For the People Act of 2019, legislation that expands voter protections, ratchets up ethics requirements for candidates and the Supreme Court, and provides for new campaign-finance rules. It addresses another voting rights case that can be overturned through a congressional override, Husted v. A. Philip Randolph Institute (2018), which ruled that Ohio’s voter purges were legal.

“Congress can have a real dialogue with the Court, even when the Supreme Court strikes down a law Congress has passed.”

If a voter in Ohio hasn’t voted in two years, they receive a card in the mail, and if they don’t return it, and do not vote in the next four years, the voter is kicked off the rolls. Voter advocates alleged that the policy violated the National Voter Registration Act of 1993 (NVRA), which explicitly bars states from removing someone on the basis of their not voting. But the Court decided that the law does not violate the NVRA because the failure to vote is not the only reason for removal—Ohio’s law also requires that the voter not respond to the mailed notice. The voter purges disproportionately impact Black voters, especially in Ohio’s three largest metro areas—which are also Democratic-leaning. The For the People Act specifically overrides Husted by making voter purge schemes like Ohio’s illegal under the NVRA.

The bill also tackles another court decision, Citizens United v. FEC (2010), which famously prohibited the federal government from restricting political expenditures by corporations under the First Amendment. Because the decision was on constitutional grounds, Congress can’t overturn it simply by updating the law, and a constitutional amendment remains unlikely. But the new legislation seeks to temper its force through public financing, requiring more transparency, and restructuring the Federal Election Commission.

“Congress can have a real dialogue with the Court, even when the Supreme Court strikes down a law Congress has passed as unconstitutional,” said Dan Weiner, deputy director of the Brennan Center’s Election Reform Program. The strategy is not dissimilar to how the right reacted to Roe v. Wade, chipping away at the decision over time, he said. “If the other side doesn’t treat Supreme Court decisions as final, and continues to look for ways to accomplish its goals, I certainly think progressives should do that too.”

Disability Rights

Despite a bipartisan congressional disability rights caucus with over 50 House members, little energy has been put forth to proactively roll back statutory decisions that harm individuals with disabilities.

The most consequential case that Congress could address would be Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, a 2001 decision that has fundamentally distorted civil rights litigation over the last two decades. In that 5-4 decision authored by Chief Justice William Rehnquist, the Court effectively rendered moot the possibility for a lawyer to collect attorney’s fees if a defendant corrects the issue before the case is completed.

The decision “has meant that far fewer civil rights lawyers take disability cases, since they know there’s a high chance they won’t get paid,” said Sam Bagenstos, a law professor at the University of Michigan who has argued four cases before the Court.

To fix Buckhannon, Congress would need to clarify the so-called “catalyst theory,” a rule courts used to rely on that says that if a plaintiff’s lawsuit was the catalyst for a change that benefited the plaintiff, the plaintiff would be treated as having prevailed even if the plaintiff didn’t have to litigate all the way to a final judgment.

“I think you could write a statute that gives attorney fees to an attorney who makes a demand letter to a defendant that says, ‘Look, I’m going to sue you unless you make these changes,’” Bagenstos said. “It’s not like the plaintiff lawyer would get some big windfall, but it would ensure they get paid evenly for the time spent on the case to that point.” The Civil Rights Act of 2008 included a measure to overturn Buckhannon, but policymakers at the time were more focused on the economy and health care. A new Congress could revive it.

Congress could also make it easier for lower-income families to seek redress under the Individuals With Disabilities Education Act by effectively repealing Arlington Central School District Board of Education v. Murphy. In that 2006 case, the Court ruled that expert witness fees were not compensable under the act, meaning families who wanted to bring in expert testimony would need to pay for that out of pocket. Arlington Central also disincentivized lawyers from taking cases for families who wouldn’t be able to bring in the kind of evidence necessary to win.

“There are notorious class divides in IDEA cases,” said Bagenstos. “Upper-middle-class and middle-class parents do far, far better, and a lot of the issues really do require an expert witness to help families effectively press their case.”

Congress could also clarify that the burden of proof in IDEA cases rests on schools, not parents, which would be a reversal of the Court’s 2005 decision in Schaffer v. Weast. “It’s hard to get people excited about burden of proof because they don’t understand it, but there’s no question that putting the burden of proof on the plaintiff as opposed to the schools makes it harder for families to enforce their rights,” said Chris Edmunds, a disability rights attorney.

Sasha Samberg-Champion, another disability rights attorney, said Congress should look at lower-court decisions too, since advocates have largely avoided bringing new disability cases over the last decade to what they view as a hostile judiciary. For example, Congress could clarify that the statute of limitations for an Americans With Disabilities Act case starts from the time someone with a disability is discriminated against by an inaccessible facility, not the time when the inaccessible facility was first constructed—an issue similar to the one Congress addressed with the Lilly Ledbetter Act. Congress could also confirm that the ADA covers online-only businesses.

“It used to be that if we got a bad circuit court decision we could file for Supreme Court review, but we don’t dare do that now since we’d risk only making things worse,” Samberg-Champion said. “That makes it even more important for Congress to step in and provide relief where the Supreme Court won’t.”

Environmental Law

Unlike other areas, environmental law largely rests on legislation passed 50 years ago during the Nixon administration. In the subsequent years, conservatives have carved out exceptions to protect their environmental interests from the judiciary—such as with laws around endangered species. Now, as federal agencies strain to meet new and growing challenges like climate change, Democrats should push for updates to those statutes.

Although experts say comprehensive legislation is preferable to statutory overrides, Congress could strengthen climate change regulations by clarifying that greenhouse gases are air pollutants covered under the Clean Air Act. That would overturn Utility Air Regulatory Group v. Environmental Protection Agency (2014), which said that the EPA had overstepped its authority by regulating greenhouse gas emissions from new motor vehicles. An earlier case, Massachusetts v. EPA (2007), determined that air pollution included carbon emissions. But without clarifying language in the statute, carbon reduction policies are effectively subject to a conservative court.

The Clean Water Act also badly needs clarification. The law regulates “the waters of the United States” but doesn’t specify which waters. In one prominent case, Rapanos v. United States (2006), the Court allowed for an “expansive” interpretation of the Clean Water Act but left “waters of the United States” undefined. Defining which waters are included would preserve important ecosystems and better protect the public.

A decision this year, U.S. Forest Service v. Cowpasture River Preservation Assn. (2020), enabled the Atlantic Coast Pipeline to crisscross the Appalachian Trail twice by sidestepping the Mineral Leasing Act, which allows the U.S. Forest Service to grant permits to pipeline companies. The decision allowed the Forest Service’s reach to extend into the Appalachian Trail, for which the National Park Service is technically responsible but which traverses national forest. A quick legislative fix could clarify that the trail is protected NPS land, and thus not subject to Mineral Leasing Act permits. But D.J. Gerken, lead counsel for Cowpasture River Preservation Association, also said Congress could go further by amending the Mineral Leasing Act and requiring pipeline companies to prove that the best possible route is through federal lands.

Under the Clean Water Act, the EPA regulates water pollutants that go into waters, like a pipe discharging into a lake, and the Army Corps of Engineers regulates filling in wetlands, such as a developer with a bulldozer. To better protect the environment, Congress could update the statute to require that mining companies obtain permits from both agencies, to avoid a repeat of the Court’s decision in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (2009).

Trying to graft environmental rules onto decades-old policies has proven difficult. In EPA v. EME Homer City Generation (2014), the Court upheld the EPA’s 2011 Transport Rule, which regulated cross-state air pollution from upwind states to downwind states, as required under the Clean Air Act. But the case left the EPA with a flawed regulation program. Ann Carlson, environmental law professor at the University of California, Los Angeles, said that advocates have sought a cap-and-trade program to regulate cross-state air pollution, which would be cheaper and more cost-effective than regulating individual plants. “But the statutory language is really short and unclear, so it would be super helpful to have a statutory fix,” she said.

Other cases are relatively straightforward. In Michigan v. EPA (2015), the Court ruled that the agency must determine costs when regulating power plants. An easy statutory fix would allow the EPA to deem those costs irrelevant.

A divided Congress has made bedrock climate change difficult to accomplish. “Environmental law is no longer bipartisan,” explained Lisa Heinzerling, a law professor at Georgetown. “It’s also because the interests are incredibly vocal and well resourced, the interests arrayed against environmental protection.”

But statutory overrides offer “room for tinkering on the edge,” Carlson said. “It seems crazy to not do anything.”

Police Misconduct

When George Floyd was killed in May, millions learned about qualified immunity for police misconduct. In a 1982 decision, Harlow v. Fitzgerald, the Supreme Court ruled that government officials, including police, can avoid civil liability for violating an individual’s rights under Section 1983 of the Civil Rights Act when those rights are not “clearly established.” It’s become clear since then that this provision protects rogue and violent cops, but despite a number of federal cases challenging the constitutionality of qualified immunity, the Court announced this past summer it would not be taking up any of them.

Congress can fix this, and a bill passed by the Democratic-controlled House in June, the Justice in Policing Act, would end qualified immunity for police officers. (Joe Biden has said he supports “reining in” the doctrine.) As a group of criminal justice scholars explained, widespread indemnification would put the primary burden of liability on municipalities, not individual officers, which then puts more pressure on the institutions that most influence those officers. Restricting or eliminating qualified immunity would also force courts to confront constitutional questions in policing they can currently dodge.

“Section 1983 is relatively straightforward, and one idea is Congress could simply amend that law to address qualified immunity,” said Hernandez Stroud, counsel for the Justice Program of the Brennan Center for Justice. Congress could also add a damages action against federal officials who violate constitutional rights, which would be consistent with the 1971 Bivens v. Six Unknown Agents decision. Some states have already started to do this: Earlier this year, Colorado passed a law creating a path for Coloradans to sue police officers in state court.

Another way Congress could increase accountability for government misconduct is by addressing a 2017 decision, Ziglar v. Abbasi, which ruled that the hundreds of immigrants held in mass detentions following 9/11 could not bring charges against federal officials for their confinement.

Amy Fettig, executive director of the Sentencing Project, said cases like Ziglar have helped to “gut the power of people to protect themselves” from constitutional violations. “We know from history that when you want to roll back rights you start with a vulnerable and unpopular population, but it never stops there,” she said. “That’s just how you normalize it.”

Immigration

The courts have always treated immigration law as an exception, dating back to the Chinese Exclusion Act of 1882, which prohibited Chinese laborers from entering the country and precipitated more exclusionary immigration law. In Chae Chan Ping v. United States (1889), the Supreme Court upheld the plenary power doctrine, allowing Congress and the executive branch to create policy around immigration without fear of court censure. That lack of oversight enabled Trump administration policies like child separation, extended detention, and ICE raids—measures that “as the Supreme Court itself has acknowledged, would be flatly and unquestionably unconstitutional if they were U.S. citizens,” as Kevin Johnson, dean of the University of California, Davis School of Law, wrote in a law review article.

Over time, the Court has allowed Congress and the executive branch less immunity from judicial review. This year’s decision overturning Trump’s termination of the Deferred Action for Childhood Arrivals (DACA) program is one prominent example. The Court did not question Trump’s authority to end DACA, but censured the administration for not doing so in accordance with administrative law.

With a newly strengthened conservative majority, the Court’s newfound tendency to treat immigration law like other law merits congressional action to prevent further anti-immigrant policy. There are several Supreme Court cases ripe for congressional override. In Demore v. Kim (2003), the Court said that the Immigration and Nationality Act’s provision for no-bail civil detention did not violate immigrants’ due-process rights. Jennings v. Rodriguez (2018) and Nielsen v. Preap (2019) contested immigrants’ rights to periodic bond hearings during long-term detention. The Court said no.

The simple fix, explained UCLA law professor Ingrid Eagly, is to grant everyone these same due-process rights. The New Way Forward Act, introduced in the House last year by Rep. Jésus G. “Chuy” García (D-IL), would end mandatory detention in some cases, end for-profit detention facilities, and bolster due-process rights. It would bar immigration officers from interrogating someone on their immigration status based on race, religion, sexual orientation, or spoken language. Although it hasn’t passed, it has support from dozens of advocacy organizations and more than 30 members of Congress.

The courts have always treated immigration law as an exception, dating back to the Chinese Exclusion Act of 1882.

In another case, Sessions v. Dimaya (2018), the court ruled that the Immigration and Nationality Act’s “crime of violence” provision was unconstitutionally vague, which in this case protected the Filipino national James Dimaya. But clarifying and narrowing the “crime of violence” provision, as the García bill does, could strengthen immigrant protections.

Congress could also overturn Barton v. Barr (2020), where, in an ideological, 5-4 decision, the court interpreted the law to enable the government to deport a permanent resident for certain crimes committed years in the past. A statutory fix could amend the removal provision.

A case argued in October, Pereida v. Barr, addresses the burden of proof in deportation proceedings. Depending on the outcome, it, too, could be a candidate for statutory override.

“I think people are shocked that some bureaucrat in Washington can say, ‘You’re deported and I won’t give you a good reason why,’” Johnson said in an interview. “We get more due process on a parking ticket than that.”

Labor

Since the passage of the National Labor Relations Act in 1935, lawmakers and the courts have steadily eroded workers’ rights, and congressional attempts to repeal those changes failed—most notably in 1978 and 2009.

Many labor experts say Democratic lawmakers have been too deferential to anti-labor court decisions. “Democrats would rather raise money on Republican atrocities than change them,” said Shaun Richman, the program director of the Harry Van Arsdale Jr. School of Labor Studies at SUNY Empire State College.

That said, the usual torpor is starting to change. In February, the House passed an omnibus labor reform bill, the Protecting the Right to Organize (PRO) Act, which would overturn a number of anti-worker Supreme Court decisions. Among them are the 1938 NLRB v. Mackay Radio & Telegraph Co. decision, which effectively allows employers to “permanently replace” workers who go on strike; the 2002 Hoffman Plastics v. NLRB decision, which prohibits the National Labor Relations Board from securing relief for undocumented workers; and the 1970 H.K. Porter Co., Inc. v. NLRB decision, which ruled that the NLRB could not force an employer to reach an agreement during bargaining.

Congress could also make it easier for workers to bring class action lawsuits when their employers harm them. Legislation could address the 2011 Walmart v. Dukes decision, which was a case based on rules of civil procedure that disallowed 1.6 million women from banding together to sue over pay discrimination; and the 2017 Epic Systems Corp. v. Lewis decision, which held that employers can force workers to give up the right to bring a class action and instead go through a mandatory arbitration system. For Walmart, Congress could clarify that class members should be analyzed based on the similarities of their claims, not their differences; for Epic Systems, Congress could simply clarify that allowances to engage in class actions via the National Labor Relations Act override the Federal Arbitration Act.

There are several other detrimental statutory decisions that the PRO Act does not address and that Congress could fix through legislation. A number of rulings, like Chamber of Commerce v. Brown in 2008, have held that the National Labor Relations Act preempts state law related to unions and collective bargaining, even though the NLRA does not actually contain a preemption clause. Over time, this has had the effect of blocking labor-friendly states from doing more to deter unfair labor practices. Congress could adopt the approach taken in the Fair Labor Standards Act, which says federal law sets the floor on policies like the minimum wage, and states can go further.

Congress could also address a 2009 decision, 14 Penn Plaza LLC v. Pyett, which held that a worker could not bring an age discrimination claim to court given that their union contract required such issues to be handled through arbitration. Congress could amend the National Labor Relations Act to clarify that a collective-bargaining agreement does not override an individual’s right to sue an employer for alleged violations of federal or state law.

Another area pro-labor lawmakers could address is the so-called “management rights” clauses in collective-bargaining agreements that the Supreme Court deemed lawful (like in NLRB v. American National Insurance Co. in 1952). Congress could clarify that management cannot insist on such clauses in collective-bargaining agreements, and that if worker and employer rights are ever alleged to be in conflict, it’s Congress’s intent that employees’ rights are given priority.

To strengthen workers’ rights on the job, Congress should also override decisions like NLRB v. Electrical Workers (Jefferson Standard), which said workers could be fired for “disloyalty,” and other decisions that radically reduced the scope of bargaining, such as NLRB v. Wooster Division of Borg-Warner (1958) and First National Maintenance Corp. v. NLRB (1981).

“All these cases have combined to eviscerate the duty of employers to bargain over what is likely the most important decision to workers, if their job will continue to even exist,” said Brandon Magner, a union-side labor lawyer. The NLRB under recent Democratic administrations did little to tackle this, Magner said, “nor have Democrats in Congress seriously attempted to overturn the aforementioned cases.”

Corporate Power

One area where bipartisan compromise may be possible is in antitrust law. In October, the House Antitrust Subcommittee’s Democratic majority released a 400-page report detailing monopoly practices in the digital economy. In their recommendations, which went beyond Big Tech and addressed how to improve antitrust policy more generally, subcommittee staff identified several Supreme Court cases Congress should overturn. Indeed, many of the problems of a highly concentrated market stem from Court decisions themselves, subcommittee staff found.

“The courts have significantly weakened [antitrust] laws and made it increasingly difficult for federal antitrust enforcers and private plaintiffs to successfully challenge anticompetitive conduct and mergers,” the report reads. “The overall result is an approach to antitrust that has significantly diverged from the laws that Congress enacted.”

Republican subcommittee member Ken Buck (R-CO) released a simultaneous report he called “The Third Way” for antitrust enforcement. Though Buck said in a statement that he doesn’t agree with the majority’s proposals, he plans to work with Democrats to find a solution. “Antitrust enforcement in Big Tech markets is not a partisan issue, I support the ongoing, bipartisan investigations of these companies,” he said in a statement.

In his report, Buck cited Ohio v. American Express (2018) as one case where he believes “there is common ground.” In that case, the Court made it harder for antitrust plaintiffs to sue corporate behemoths by ruling that middleman American Express could only be cited for anti-competitive conduct if it harmed its cardholders and merchants. Congress could specify that plaintiffs don’t have to “establish harm to both sets of customers.”

The Court has also manipulated congressional intent in antitrust law through its interpretation of “tying,” where a dominant firm controls the purchase of a separate product or service and forces customers to use both. Historically, this was considered de facto anti-competitive. But in Jefferson Parish Hospital District v. Hyde (1984), the Court disagreed. Congress could clarify that the statute specifically states that “tying” goods and services together to force consumer adoption is anti-competitive.

Congress could easily override Spectrum Sports, Inc. v. McQuillan, which requires a monopoly “actually monopolize” a second market, by lowering that standard. Lawmakers could also make clarifications and updates to the Sherman Antitrust Act, which the Court, in Illinois Brick Co. v. Illinois (1977), interpreted in a way that denies indirect purchasers of goods and services in a supply chain the right to sue for antitrust violations—even though they may also experience injury from anti-competitive behavior. Congress could overrule and specify the ability for indirect purchasers to sue.

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., the Court loosened a Sherman Act requirement that had made mandatory-minimum price agreements automatically illegal. Congress could overrule and provide that vertical price constraints are per se illegal.

Two other cases, while not directly concerning antitrust law, similarly limit plaintiffs’ ability to bring lawsuits against corporations in particular. The Court’s interpretation of the Federal Rules of Civil Procedure in Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009) created stricter pleading standards that apply to all areas of the law, making it more difficult for plaintiffs to contest environmental degradation, anti-abortion laws, workplace safety standards—or any other area where the law is not being enforced. The Twombly/Iqbal standards are some of the most cited cases by federal courts of all time, allowing powerful parties to easily dismiss cases before they even reach court. Jones Day, a law firm known for defending corporate clients, called the decisions a “welcome development.” Both decisions are based on Court interpretation of a federal rule, which can be changed through the federal rulemaking process promulgated by Congress. In 2009, Sen. Arlen Specter and Rep. Jerry Nadler introduced companion bills in the House and Senate that would restore the more plaintiff-friendly standards of Conley v. Gibson (1957). A Democratic majority should tackle these cases again.

As the subcommittee report outlined, antitrust law is relatively toothless right now—and that’s partly because the Court has so ratcheted up the standards for what kinds of cases parties can bring. “The practical effect is that antitrust laws are not routinely enforced. The goal of reform efforts is to ensure that the antitrust laws can actually reach antitrust violations,” said Lina Khan, a Columbia law professor who helped draft the majority report. Making it more difficult to be heard in court is a trend across the board, but Khan says it’s especially pronounced in antitrust law. But all this could change with Congress.