Time for Congress to Put Up or Shut Up

For years now -- for decades now -- conservatives have looked to Congress to pass legislation designed to overcome what they perceive as a liberal bias on the United States Supreme Court. The federal ban on late-term abortions is only the latest and most visible example of those efforts. Now, however, Democrats on Capitol Hill are making noise about trying to undo some of what they perceive as the more alarming decisions that have come from the court this term. And guess what? Some Republicans aren't happy about it.

Is it any wonder that these bozos are currently even less admired and respected by the public than the president?

Congress has both a right and a responsibility to try to "respond" to Supreme Court rulings by changing the language of federal statutes to better reflect the intent of lawmakers and the will of the public. And the justices are cognizant of that fact. In case after case, even the most conservative justices on the court practically beg the legislators to fix statutes or otherwise clarify murky or quirky areas of the law. Two terms ago, for example, in the famous "takings" case, the justices practically begged Connecticut lawmakers to change the state law that allowed local officials to "take" with just compensation private property from homeowners and then flip the property to developers.

Here's Elena Schor in the TheHill.com: "'What the court's saying to us is, you have to write down every single little thing you want done,' Sen. Tom Harkin (D-Iowa) said. Congress should not have to step in often to address the court's interpretation of statutes, he added, 'but I'm afraid we may be moving in that direction.' Harkin is spearheading measures to counter two of this term's most contentious rulings, one that limited workers' window to sue for pay discrimination and another that exempted home healthcare aides from minimum-wage rules. The House bill to mend the former decision, Ledbetter v. Goodyear, will be marked up today by Education and Labor Committee Chairman George Miller (D-Calif.)."

The problem is that the legislative process is not good at generating clear, unambiguous legal language. To the contrary -- it is marked by arm-twisting compromises that lead to mealy-mouthed words like "reasonable" which in turn generate precisely the sort of wiggle room that the justices use to reach the conclusions they do. So while I'm all in favor of the coming Democratic push to change employment law to allow employees to more easily seek damages for past workplace discrimination, for example, let's just say I am not necessarily holding my breath waiting for it to happen.

By Andrew Cohen |  June 27, 2007; 8:28 AM ET
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Hey, at least the Court didn't push them in the direction of screaming that we need a Constitutional Amendment to address anything and everything which they don't like.

Posted by: DC | June 27, 2007 12:11 PM

The use of "weasel words" by legislators at all levels is now commonplace. Mr. Cohen correctly points out that including such language is often the price of arriving at agreement by compromise, a method of deferring determination of legislative intent to the judiciary. This ploy also lets legislators interpret their affirmative votes for legislation containing such 'weasel words' any way they want in an effort to explain it to sceptical constituents. Sometimes one trying to determine legislative intent can get some help from printed arguments and comments in printed hearings or floor debates, but as any student of the courts knows, relying on such statements by individual legislators is 'leaning on a weak reed.' These comments by individual legislators are somewhat like 'signing statements' except that they have nothing like the practical effect, real or potential, benificent or pernicious, of presidential signing statements. It would be nice if, as Mr. Cohen suggests, legislatures regularly enacted corrective legislation whenever a court does violence to the probable original meaning (for we usually can only guess what such original meaning was), but it's unrealistic to expect this to happen. The subsequent legislature usually has no more idea than the interpreting court had of the 'real intent' of the legislation in question both because of the ambiguity of the language and the fact that the correcting legislature is a different legislature, i.e., one with different membership than the original legislature. On top of the problems of indeterminacy of language and different legislatures, there is the fact that legislative priorities can change radically from session to session, legislature to legislature. As one of the Great Greeks said, "We cannot step into the same river twice." "Correcting" the misinterpreted statute may just stir up the hornets' nest again and lead to the adoption of more 'weasel words' to get to another compromise result. It's a messy process but probably the best we can do, unless we just want to leave the whole mess up to the omniscient and omnipotent Fourth Branch of Government to figure out. Help us out, Dick.

Posted by: P. Bosley Slogthrop | June 27, 2007 04:31 PM

"The problem is that the legislative process is not good at generating clear, unambiguous legal language. To the contrary -- it is marked by arm-twisting compromises that lead to mealy-mouthed words like "reasonable" which in turn generate precisely the sort of wiggle room that the justices use to reach the conclusions they do."

This is also the problem for naive individuals who claim justices should just stick to the plain text of the law and original intent- there is no such thing when laws are written by legslatures rather than individuals, and this was the exact same system that gave us the Constitution- numerous individuals with complex notions yielding compromise after compromise and ambiguous ruling (Congress shall have the power to regulate interstate commerce- now please define "regulate" and "interstate commerce" for us...). All was left ambiguous so it would survive the challenges of men as diverse as Hamilton, Madison, and Jefferson (once he got his way on the bill of rights, another great nodd to legislative ambiguity).

Then, we must ask the question if each article is taken out and is absolute by itself, or if the amendment process changes the nature of the entire document, as with shifting definitions of all the words and the nature of reality (interstate commerce meant something very different in a merchantilist system than it does in a post-technological era, and the intent of the application to the one era cannot be applied to the new era). Weasel words are nothing new, neither is intentional ambiguity or political correctness (Go read the original constitution, and ask yourself what is meant by "all other persons," why couldn't they put the word slavery in that text anywhere?)

Let's get beyond these narrow and politically popular, but utterly nonsensical buzzwords about jurisprudence and interpretation, and have some real serious discussion of this stuff for a change. The results of these debates affect the lives of far too many people.

Posted by: Michael | June 27, 2007 08:44 PM


"This is also the problem for naive individuals who claim justices should just stick to the plain text of the law and original intent- there is no such thing when laws are written by legslatures rather than individuals"

I couldn't agree more. It just seems to me that it is an outright fallacy for Justice Scalia (and others) to claim that he is interpreting the Constitution as the Founders would have, yet at the same time ruling for a strict 180-day statute of repose for employment discrimination with no equitable tolling when it was clearly the intent of Congress to allow it.

Don't the conservatives have a term for that? Oh, yes: "ACTIVIST JUDGES." Scalia is more a Constitutional strict destructionist than anything else.

Posted by: Nellie | June 28, 2007 06:51 AM

"No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns." - Mr. Dooley (Finley Peter Dunne)

Does it really make any difference how clear or obfuscating the language is are?

Posted by: DC | June 28, 2007 10:13 AM

"is are" was a typo, but maybe not as inappropriate as it seems at first.

Posted by: DC | June 28, 2007 10:34 AM

I actually don't agree with Michael's obfuscations. Even though the Constitution came from discussion and compromise, that doesn't mean the intention of what was ultimately written can't be reasonably determined (nor does this detract from Andrew's simple and valid point). I used to take seriously people who act as if they don't understand what single words mean, somehow law professors who apparently can't read at a bright high school student's level; now it's clear they have to have some agenda of their own to be so anxious to claim its indeterminacy. Yes the Constitution doesn't cover a lot of things, but even an amateur as I didn't find it difficult to understand at all.

Posted by: Charles | June 28, 2007 11:14 AM

I believe Native Americans/Siberian expatriates existed in colonial America.

Posted by: | June 28, 2007 11:54 AM

Fine, describe for me what the sentence I outlined there meant. Define for me exactly what was meant by the First Amendment (or, for more fun, the 9th and 10th), and how are we supposed to apply those today given the changing structure of the constitution, changes in society, and the world at large? Plenty of very smart people sharply disagree over those simple issues.

Posted by: Michael | June 28, 2007 02:20 PM

I'll have to find my marked copy with my interpretations of each line, which I don't feel like doing early in the summer. But I can say when I went through it (I'm sure I didn't have some doctored version) I thought the intention (rather than the wording always being helpful to cover every potentiality in the future, which would be impossible for any document)of at least 95% of the statements wasn't hard to determine, or controversial.

Posted by: | June 28, 2007 02:36 PM

To adapt to specific circumstances which no way the framers could know (and of course they were aware of this), yes that is for us to do(positive/normative distinction). But we should still respect their intentions and principles, otherwise there is no point even pretending to consider a document written by them, not us.

Posted by: | June 28, 2007 02:42 PM

Easy to determine as you understand it, or as they understood it? And by they, do we mean Jefferson's faction, Hamilton's faction, or someone else, all of which took that document to mean something very different? Everyone thinks it makes perfect sense when viewed through their glasses, but everyone seems to be wearing very different glasses, and until we more honestly recognize that simple fact, all this nonsense about "original intent" and "stric constructionism" remains just nonsense. These nine justices on the court can't even agree on the Brown v. Board decision, one that is universally supported and that all claim to be the heirs to. That decision is written much more clearly and in more explicit detail than the Constituion, and is only 50 years old.

Posted by: Michael | June 28, 2007 03:16 PM


There is one blatant exception to your argument on the clarity of Brown: "all deliberate speed." What is deliberate speed? How fast is fast enough and how slow is too slow. Texas was still out of compliance in 1994. Was that speedy? Or deliberate?

The insertion of that phrase by Justice Frankfurter gave the segregationists enough wiggle room to avoid integration for decades.

Posted by: Nellie | June 28, 2007 03:34 PM

But that's my point, it wasn't really all that clear, but it was much clearer and more specific than the Constitution...

Posted by: Michael | June 28, 2007 03:51 PM

If what your premises about the Constitution (at 3:16) are true, I agree with your conclusions that strich construction etc.. would be chimeras. I mean the intention of what finally is written, whoever wrote it (it doesn't, as say Hamlet clearly does, show it is a hodgepodge of heterogeneous materials). I'm not familiar at this time that various framers understood the document to mean totally different things from each other-if so how could they even all sign it (and we all share certain agreements about conventions of language, how could they totally disagree with something in English they agreed to)? I'll look into that later. As far as their agendas beyond what was written that is a different matter (slave-owning Virginia versus mercantile New England etc..)

Posted by: Anon @ 2:42 | June 28, 2007 03:53 PM

Because of the whole point of this discussion. The compromise language agreed to was so broad that both sides were left free to argue their cases about interpretation after the fact. Strict Constructionists like Jefferson believed the Constitution guaranteed a small and limited federal government confined only to the powers it was explicitly granted in the Constitution, while loose constructionists like Hamilton saw it as a framework of power with numerous openings through the Commerce, Necessary and Proper clause, etc., that allowed them the freedom to build a stronger central government.

It was this broad divide over constituional interpretations that gave us the first two major partied- Jefferson's Democratic Republicans, and Hamilton's Federalists, and led to the early major court cases- Marbury v. Madison and McCullough v. Maryland, etc., tat helped shape power today. As a note on this whole thing and getting back to the nature of judges as politicians and political decisions- the jeffersonians won the political debate, but the hamiltonians were sure to pack the Judiciary before they left- installing Marshall as Chief Justice and a slew of judges before Jefferon took office (the midnight judges) guaranteeing the courts were dominated by Federalists for those early critical years and eventually leading to the federalist interpretation being the accepted one by the legal framework, despite the interpretation accepted by the public at large.

Posted by: Michael | June 28, 2007 05:27 PM

Certainly am sure Hamilton and John Adams wanted a strong central government-that is understandable being Anglophiles- but they saw it as a "framework of power"? Will check it out later, maybe once the weather this year gets cold (thanks for your discourse).

Posted by: | June 28, 2007 06:39 PM

Actually most individual members of Congress have superior approval ratings than the President. Some who drag down the Congressional numbers are Boehner, Stevens, Brownback, Cochran, Inhofe, Kyl, Lott, Roberts, Kennedy, Hunter, Jefferson, Murtha, Doolittle to name just a few. Idiots Sloths Demons and Pigs all of them. Luckily they are in the process of being marginalized.

Posted by: Loki1967 | June 28, 2007 07:04 PM

The paradox in this is that while Congress may be unpopular as an institution, most voters have favorable opinions of thieir own Congressman and Senators, which is why they keep getting re-elected. So, in other words, people hate OTHER people's representatives.

Posted by: | June 29, 2007 05:46 PM

Loki1967: I don't see how you can lump Kennedy into the same category as Stevens. Kennedy is a champion for the people, Stevens encourages his own children to be criminals like him.

No, I'm not from Mass.

Posted by: kackermann | June 29, 2007 06:19 PM

Loki1967: I don't see how you can lump Kennedy into the same category as Stevens. Kennedy is a champion for the people, Stevens encourages his own children to be criminals like him.

No, I'm not from Mass.

Posted by: kackermann | June 29, 2007 06:19 PM

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