Fall 1983 – Issue 30 - Stanford Lawyer - Stanford University

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AtISSUECongressional Responses toSupreme Court Decisions: DistinguishingConstitutionality and WisdomBy Gerald GuntherWilliam Nelson CromwellProfessor ofLawThe failure of the New Right'sassault on the Supreme Courtlast year was widely portrayed-especially in the media andpolitical forums - as just desert forthe movement's resort to "illegitimate"weapons.The assault involved two majorproposals before the Ninety-seventhCongress venting disagreement withcontroversial Supreme Court decisionson abortion and school prayer.Both were blocked in the Senate by afilibuster. However, similar legislativeproposals by the New Righ~. arepending before the present Congress.The conventional wisdom assertsthat Congress has no business tryingto curb Court rulings by a majorityvote and that the only legal route forchallenging Court decisions is theconstitutional amendment process.The conventional wisdom strikes24 Stanford Lawyer Fall 1983
me as wrong. It rests on a profoundmisunderstanding of our constitutionalscheme. As a matter of sheerconstitutional power, Congress mayvoice disagreement with Court rulingsthrough a range of methodsshort of constitutional amendment.Like the political branches' control ofjudicial appointments and of the sizeof the Court, the weapons recentlywielded by the New Right are legitimateas a matter of sheer congressionalauthority-whatever one maythink of their effectiveness or desirability.Indeed, when the judiciary survivesthe recurrent firestorms ofcriticism because Congress is persuadednot to resort to theseweapons except under the most extremecircumstances, the systemworks at its best and the stature ofthe Court often emerges all thegreater. What may fairly be addedis that the wisest congressionalresponse to objectionable Courtdecisions is through the constitutionalamendment process - and thatall other routes are usually illadvised(but not wholly illegitimate)end runs around that preferablemethod.The Helms antiabortion proposal,for example, rested on substantialconstitutional grounds- grounds advancedby the modern Court itself.The premise was that Congress,under its power to enforce the FourteenthAmendment, has some authorityto redefine Court-articulatedconstitutional rights.Before the mid-1960s, most scholarswould indeed have branded thattechnique as lawless. But, ironically,it was the liberal Warren Court, inthe 1966 Katzenbach v. Morgan decision(sustaining a section of theVoting Rights Act of 1965), whichprovided some legitimacy for theNew Right's approach of the 1980s.Justice Brennan's majority opinionin Morgan conceded to Congresspower nearly coequal with that of theCourt to delineate the contours ofconstitutional rights. The "conservative"Justice Harlan warned in dissentthat the ruling opened the doorto an impairment of traditional judicialauthority. I have always thoughtthat Justice Harlan was right. Eversince Morgan, constitutional scholarshave worried about its implications.Yet neither the commentarynor the Court itself has ever clearlycurtailed the Morgan power.In perspective, the recent blockingof the antiabortion drive constitutesa wise judgment by Congress to rescuethe Court from its own Frankensteinmonster. Congressional abstentionin this instance may in thelong run do more to discourage invocationof the Morgan power thananything the Court or commentatorshave been able to achieve.The Helms school prayer proposalrested on even stronger historicaland legal grounds. The centralpremise of the Helms effort to barfederal court intervention in "voluntary"school prayers was that Congresshas authority over the SupremeCourt's appellate jurisdiction.The claim that Congress determinesthe kinds of issues the Courtmay hear is hardly novel or revolutionary.Soon after the Civil War, inthe only case putting the question toa direct test (Ex parte McCardle), theCourt bowed to just such a curb. Andover the years, many constitutionalscholars have agreed that Congressdoes indeed have that jurisdictionstrippingauthority.The question remains whether theCourt defenders who blocked theHelms bills were themselves guilty ofresorting to improper means. Theanti-Court bills were defeatedbecause the New Right could notmuster the necessary 60 votes to imposecloture on filibusters waged bythe Court defenders. Filibustershave traditionally been the weaponsof reactionary, antimajoritarianforces.Yet the recent liberal filibustershad special justifications. Courtdefenders plausibly claimed that theconstitutional amendment route isthe only wise way to overturn Courtdecisions. Congressional initiation ofamendments requires a supermajority(two-thirds) vote. The impositionof cloture to shut off filibusters requiresa similar supermajoritythree-fifthsof the Senate. Initiating afilibuster thus was the only methodavailable to the Court defenders toinsist upon the considered consensusof a supermajority as a preconditionfor congressional modification ofCourt-established rights.These recent developments, then,underscore the wisdom of our constitutionalscheme: rather than immunizingthe Court from all congressionalresponses, it permits politicaltensions to be aired; and congressionalself-restraint in resorting tothe weapons at its command leavesthe Court better off for having metand survived the challenges from thepolitical arena.The defeat of the Helms bills isthus best viewed as a welcome exampleof the sober second thought ofCongress in defending and probablystrengthening the Court- not byrepudiating extremist, "lawless"measures, but, in the healthiesttraditions of our constitutionalscheme, by abjuring legitimate butimprudent devices to impose curbson the judiciary.•Professor Gunther presented an expandedstatement of his position inJune 1983 at the Chief Justice EarlWarren Conference of the RoscoePound American Trial LawyersFoundation; the Conference proceedingswill be published.Fall 1983 Stanford Lawyer25
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October 11Washington, DC LawSociety
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COMPARATIVE CONTRIBUTIONS TOTHE LAW
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A MESSAGE FROM THELAW FUND PRESIDEN
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CLASSAGENTSLong BeachSterling S. Cl
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Warren Christopher'49 Penny Howe Ga
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Frank L. Mallory '47Richard C. Mall
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Ronald G. Trayner '67Anthony J. Tre
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Walter A. Johnson, A.B. '29 Maxine
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DONORS TO THE LAW FUND• Hon. Murr
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CLASS OF 1948R. Winfield AchorHon.
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• Thomas R. MitchellR. Chandler M
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Paul E. Kreutz• Prof. Richard B.
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Gabriel M. GesmerMichael GilfixCorn
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HIGHEST LEVELSOF PARTICIPATIONLARGE
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FACULTY, FORMERFACULTY &STAFFBarbar
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REUNION GIVINGWhile class reunions
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DONORS TO SPECIALPROGRAMS AND FUNDS
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Class of 1954 Reunion Student Finan
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In Memory of:Clifton C. Cottrell '2
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Clyde E. Tritt'49William W. VaughnS
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BEQUESTS AND DEFERRED GIVINGBequest
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Fall 1983 – Issue 30 - Stanford Lawyer - Stanford University

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