In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the “check” on judicial power provided by overrides is not as robust as is typically assumed. Despite the importance routinely ascribed to overrides, the actual effect of overrides has received surprisingly little attention within the academic community. This is perhaps because one might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Thus overrides raise unique, and previously largely ignored, questions of statutory interpretation. Using examples from employment discrimination, an area of the law where Congress frequently overrides Supreme Court decisions, this Article demonstrates that the Supreme Court and lower courts often narrowly construe the significance of congressional overrides and instead rely on the prior judicial interpretation of statutes as expressed in overridden precedents. Thus, for example, although Congress clearly disagreed with a Supreme Court decision holding that pregnancy discrimination is not sex discrimination, lower courts, noting that the statutory language of the override only explicitly references “pregnancy, childbirth, or related medical conditions,” continue to apply the reasoning employed by the Court in that overridden case when faced with sex discrimination claims in other contexts. I call this phenomenon reliance on “shadow precedents.” The Article shows how reliance on shadow precedents threatens legislative supremacy and undermines the standard rationales offered for adherence to precedent. It argues that, in drafting overrides, Congress should strive to clarify the extent to which it disagrees with the prior judicial interpretation. It also argues that courts should adopt interpretive conventions that are more respectful of the significance of the enactment of an override: (1) a rebuttable presumption that an override supersedes the judicial interpretation of the pre-existing statutory language, thus requiring “fresh” interpretation of the original statute as well as the override, and (2) a clear rule that overridden interpretations are no longer binding on lower courts. Reprinted by permission of the publisher.
Deborah A. Widiss,
Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol84/iss2/1