Please provide for me an example

In a column in the Washington Post, a columnist talks about the Supreme Court nomination, and how Democrats are Democrats on the wrong battlefield

I don’t disagree with the thesis, but within the column he says something that others have said in similar ways, and it disturbs me that there are actually people who think this.

“And Congress, not the executive, has been known to overturn Supreme Court decisions.”

I ask anyone to provide me with an example. The Supreme Court interprets law. Congress makes law. So the only way to ‘overturn’ a Supreme Court decision is through a constitutional amendment (requiring more than just the US legislature, but also the state legislatures to buy in), or for the Supreme Court to reinterpret. There is no other way.

0 thoughts on “Please provide for me an example

  1. DL Emerick

    John, there is a simple explanation for the disconnect.

    Congress may overturn a Court’s Constitutional decision only by using the Amendment process.

    Congress may overturn a Court’s interpretation of lesser positive law, such as of a statute, by rewriting that statute. Congress does this latter sort of thing whenever it feels that a Court has completely misread the intent of the statute.

  2. John

    Well, using both of those explanations.

    1) How often has this occurred. How often can a constitutional amendment be tied to a reaction to a supreme court case. The Flag Amendment is a good example where this has been tried, but so far at least, has failed.

    The author said this had happened. I don’t think it has. I think all our current amendments have different Origin Stories.

    And since the gist of the column was to argue Democrats should be focusing on who they elect to Capitol Hill…but says nothing about State Houses, I interpret that to mean the author thought the Federal Legislature had overturned decisions on their own. Which has never happened.

    2) Rewriting a statute is not overturning a decision. The decision still stands. The new law just attempts to work a compromise, by following the decision, but still writing into law what some of the original law’s supporters wanted.

  3. Greg Trotter

    You are assuming that all SCOTUS decisions fall along constitutional/unconstitutional grounds. That’s simply not the case.

    In many decisions, the court is interpreting a vague or badly-written law. In some cases, the interpretation can be different from what Congress intended, and they can fix the issue with a new, clearer law.

    Also, some decisions are based on federal law vs. state law, and Congress absolutely can do something about that.

    The highest-profile cases are ones that are decided on constitutional grounds, and they are high-profile simply because the Congress (by themselves) is powerless to change it.

  4. John

    Yes…I was focusing on the constitution, as opposed to other laws. However, while Congress can certainly fix poorly worded laws, if anything is overturned, its not the Supreme Court decision, it’s the previous law.

    The interpretation of the previous law still stands, even though it has been rendered moot.

  5. DL Emerick

    You are 100% correct, John, that the Court’s decision — interpreting lesser law — is not actually reversed or overturned — when some subsequent statute is passed to overcome the effects of a Court’s decision. My first statement was sloppy and loose, as it is this effect of the decision and not the decision itself that is reversed.

    The proof of that would be some case like this claim of possible history: Congress passes a law, the Court interprets it “contrary” to alleged Congressional intent, Congress passes a second law to moot the Court’s interpretation, the second law stands for awhile (on top of the first as it were), then the second law is challenged and it is read as void in some section and severability is deemed inapplicable, for some obscure reason. The net effect of this would be to revive the first law as the controlling law (assuming the first law hadn’t been separately repealed, explicitly), and with that revival, the Court’s un-overturnable interpretation then becomes wholly applicable again.

  6. DL Emerick

    So, with this perspective, what we left with is this proposition:


    This is an aspect of finality and of particularity: the Court necessarily always has the last word as to what is a legal decision between the claims of two or more different entities.

    (We do not allow arguments of schizophrenics like myself to be sustained in formal legal proceedings — to let some legal decision decide for me. We have this legal theory, for all people of divided thinkings, that they may not be heard to argue against themselves — not in a court of law, at least. (However, J. Scalia broke this rule a few years ago, where he quibbled about a decision on precisely such schizoid grounds. He thought he was being cute, I am sure — but I feltthat it was an obnoxious and gratuitous insult to the parties before him.))

    Congress may complain about how a Court wields its power to decide cases. It’s an easier gig for Congress to do that, than actually to do anything useful or helpful. It’s the best statistical indicator of a Demagogic Congress when it spends most of its time complaining about the Court.

    It’s demagoguery because Congress is far, far more powerful than any Court ever is. Congress may write yards of text, in new laws, when it feels a problem needs to be addressed, generally. A Court never writes a single law. A Court may only interpret how the law applies to the facts of a particular case. And, sometimes, that means a Court must say that some acts of the legislature (like Congress) simply do not square with the fundamental law (in our case, often, that is the Constitution — though all such foundational law is, generically, constitutional (small c)).

  7. DL Emerick

    So, John, if we return to your original intent (hehehe, here), you were stressing that Democrats who focus on a Court appointment process probably are wasting their time?

    I have no doubt you are correct that they should be focussing on winning elections. But, isn’t that the point? They have not been winning elections for a decade or so.

    The GOP has turned the corner on the prevalent ideology. One analyst says this “Voters are no longer citizens of a democracy. They have become taxpayers of a business organization. These taxpayers see themselves as involuntary customers, footing the bill for goods and services given mostly to unworthy others.”

    This is the not-so latent ideology of ANARCHY that the GOP incessantly pushes: “No taxes, no (much less) government. No law ever betters anything; every law is an evil. You can spend ‘your’ money better on you than they ever have or will or can when they spend it on themsleves.”

    The smidgeon of truth in these wild-ass assertions gives them just enough plausibility for the gullible, the stupid, the lazy, the uncaring roughnecks and rednecks — the Cubic Rubes — of most of middle America.

    And, how shall Democrats overcome the rising tide of such an electoral mass? We might as well be King Canute who thought to prove to his retinue of psychophants the falsity of their views. Every King always imagines his followers to be more rational than he ever is, which is why all Kings go crazy, listening to the voices of madmen. “Command the waves to stop coming when the tide comes in, Oh Great and All-Powerful King.” “Command the Iraqis to have a Democracy, oh great Bush.”

    (The word King is better translated these days as CEO or Corporate Executive Officer — although in what sense any CEO is an officer (or a gentleman) is just a case of bad grammar and even worse semantics.)

    Winning elections. Hate only works for haters. The GOP is a bunch of haters. When the Democrats are on the attack they have become a bunch of haters of haters. It doesn’t work for them, this derivative mode of hating all of those haters.

    The Democrats will win when they return to the Politics of Love — when they talk about their love for the world, for the people in the world, for giving the people who love the world better lives in it. Bill Clinton is still our hero, even if he met his love a little too personally well known, a little too particular.

    And, the stiff Al and the even stiffer Kerry never figured this out — although you’d have thought when Al kissed Tipper that he looked like a winner for sure. Kerry would have done better if he’d kissed Teresa a few times, instead of letting her mouth off with her own lips about so many topics, so casually, so loosely letting her lips go flapping.

    Winning elections — kiss the babies, pat the ladies on the ass, glad-hand the guys — look ’em in the face, in the eyes — it works for John McCain, this semblance of being a nice guy, when actually his politics places him pretty far to the right of righteous reasonability itself.

    Win elections.

    Yep, Win.

    Win, that’s the ticket to punch.

  8. John

    The article’s gist was that Democrats were focusing on winning the wrong elections (and losing them as well.)

    If we’d been winning the Senate/House seats, we could reject each nomination until it suited us in a traditional up-down vote.

    It could equally be argued that the Democrats were focusing on the big prize…since usually the winner of the Presidential election has coat-tails. And it could further be argued that that is why we’ve lost seats.

    It could probably also be argued that we were focusing on several state races, we just weren’t successful.

  9. DL Emerick

    What I am arguing about winning elections is a double-jointed observation.

    1. Winning elections does not happen when your party has the right positions on issues that matter. You can have large popular majorities behind every position your party takes, and yet not win control of institutions, such as the House, the Senate or the Presidency.

    And, conversely, your party can take distinctly miniority positions on the same institutions and yet enjoy an easy and long-term dominance of all those institutions.

    This observation is due to the structuralism that characterizes any political system — especially one like our own, which is replete with many strong barriers against rule by popular majorities, on “mere” issues.

    Such barriers are things like (a) longer terms for some offices than others (Senators vs House); (b) representation based on non-population factors (Senate vs House, again); (c) representations based on population concentrations (or dispersions) — sufficiently large diffuse minorities are easily able to control more districts than a concentrated majority does (Wisconsin is a perfect example); (d) incumbency encourages re-election of the guy in office because he is (ex def) more experienced in persuading the voters to vote for him and each re-election increases his superficial familiarity to the electorate who often have no idea at all of what the representative has been doing over the years he has served them — and the local small-town media (by neutrality, at the least) favor the clown in office (structural lack of relevant, reliable and valid information); (e) leading to very few districts actually contestable in ordinary election years which then allows Big Money (and its ally Big Demagoguery) to focus on a few “marginal” districts (reducing, also, enormously the variance in the system, as well as the cost of system-dominance maintenance — a sustaining signal approach costs far less total energy than one that must refresh every message element with its counterpart in each time cycle — ideology, by the way, works that way — to co-opt voters into being self-sustaining signal generators); and so on.

    2. Inevitable structuralism thwarts majority rule — it’s just becomes a case of out far out of joint the system and the world are. The second observation is thus architectronic — kind of like plate tectonics in geology. When landslides happen, when the ground shivers and quakes, when the out-of-jointness finally exposes itself, the ground shifts violently — as some say happened in 1994, or in 1974… 1958 or 1946 or 1928 or 1912…

    If there is any rhythm in political cycles, we may have a while to wait for the next political quake — or it could happen tomorrow. Life may have to become even more rotten for even more Americans before enough of them are willing to recognize the plain fact of the matter that they are being screwed royally. And, like crystallization, it seems the transformation is rapid when it happens — switching from one state to its “polar” opposite almost over night.

    3. The latent observation is that you don’t win by what you say as far as the issues go. You win when the other team fouls up and the public (finally and properly) connects the dots of that ever obvious fact with them and blames them for the mess. Right now, most Americans are in the mood “ah, Bush is screwing it up royally, but it really isn’t his fault that he is such a screw up — he just is a little guy, caught in hard times and is doing his bets for us.” As long as the voters don’t perceive Bush as the major cause of his (and their) problems, the voters can be quite overly charitable.

    4. And, besides all of that, for voters to reverse their thinking, they have to admit, somehow, that they were probably wrong in their voting in the last few elections — and that makes it even harder to persuade people, because they first have to blame themselves for being almost fooled (well, ok, fools). This s structuralism of self-obstinacy that most resists reason and rationality — even more than any ideology — this confession of wrong-doing. Why heck, many Southerners chose to become Republicans rather than admit than their politics are still strongly tainted by racism. Many suburbanites chose to vote for Bush rather than admit that he has been misleading them in the opportunistic War on Terror that he launched on 9-11 (allegedly, as a continuing hyper-reaction to it — as if every thing he does is related to it.)