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As the Supreme Court’s term winds to a close this week, lawmakers are mulling the future of a thriving breed of bill: the high court “fix.”
Members of both parties are pressing or planning at least six bills to clarify recent Supreme Court rulings, signaling what may become a new era of congressional sensitivity to court decisions that can be remedied with legislation.
“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.).
Lawmakers have written bills responding to the Supreme Court for decades, and the high number of recent offerings is hardly a new phenomenon. But the rare confluence of a high court drifting to the right and a Congress under Democratic control gives extra urgency to the current crop of legislation.
“I think we have to be responsive to Supreme Court rulings, as precise as possible in our language, and from the Democratic perspective, expect the worst,” Senate Majority Whip Dick Durbin (D-Ill.), a senior Judiciary Committee member, said.
Much of the heightened concern among Democrats centers on Chief Justice John Roberts and Justice Samuel Alito, two Bush appointees who sparked partisan wrangling during tense confirmation hearings last session. Now that a series of narrowly divided rulings has alarmed Democrats by curtailing free speech and workers’ rights, the new majority is striking a Cassandra-like note of warning.
“It’s clear where the majority of the court is going, and it’s going far right,” Sen. Dianne Feinstein (D-Calif.), also on Judiciary, said. “That was our greatest fear.”
Senate Health, Education, Labor and Pensions Committee Chairman Edward Kennedy (D-Mass.) echoed that sentiment in a statement: “When they were nominated, John Roberts and Samuel Alito insisted they would be neutral umpires. Now that they are on the Supreme Court, every big call seems to go in favor of corporate and government power, and against ordinary citizens.”
Sen. Debbie Stabenow (D-Mich.) noted several spheres in which the court has taken a conservative approach, remarking, “We’re going to have to come back to legislate and look in each of these areas. It certainly sends a profound message about the long-term impact of judicial appointments.”
In addition to the bills remedying the Ledbetter case and the home healthcare aides case, Long Island Care at Home v. Coke, Miller aims to move a bill that would clarify the government definition of “supervisor” after a 2001 Supreme Court ruling allowed the Bush administration to exempt several classes of workers from overtime-pay rules.
“Any time the court issues a ruling that serves an ideological agenda instead of interpreting the law in a way that reflects workplace realities and congressional intent, we will work to rectify those misguided rulings,” said Aaron Albright, a spokesman for Miller’s panel.
Responding to this year’s decision upholding the ban on certain late-term abortions, Sen. Barbara Boxer (D-Calif.) is leading the push to carve out a permanent abortion right for mothers whose life or health is jeopardized. And Kennedy is working on a bill that would address several recent civil-rights rulings.
The number of bills answering the Supreme Court “will increase, no doubt, because as the Alito-Roberts court issues more and more decisions … there are a variety of areas where they may take a stand that’s far over on the ideological spectrum,” said Caroline Fredrickson, Washington director for the American Civil Liberties Union.
Republicans have introduced a fair number of high court-response bills in recent years, with Sen. John Cornyn (R-Texas) falling short in a March bid to reverse a 2001 ruling that barred the government from holding immigrants awaiting deportation for more than 6 months. Still, few in the GOP were sanguine about Democrats’ chances to successfully undo this term’s decisions.
“If Congress disagrees with the way a certain social decision is decided by the Supreme Court, Congress has the right” to address it legislatively, noted Sen. Orrin Hatch (R-Utah), a former Judiciary chairman. “On the other hand, I don’t see much chance of [the latest group of bills] passing.”
Sen. Lindsey Graham (R-S.C.), in a brief interview, advised his colleagues to resist the urge to get involved in every ruling that creates a ripple effect of contention among concerned interest groups.
“There’s a new way of doing things — if you lose in court, run to Congress to fix it,” Graham said, adding that such an
approach effectively turns the legislature into a de facto court.
Georgetown Law School Professor Richard Lazarus, director of the university’s Supreme Court Institute, disputed the appellation of bills responding to rulings as high court “fixes.” Once the court has ruled, he said, lawmakers simply are changing the law that the justices had examined.
While he withheld judgment on whether the latest crop of bills constitutes a growing pattern of countering the court, Lazarus echoed predictions that few of the legislative remedies would make it to the president’s desk.
“Almost every time a SCOTUS ruling comes down in different ways to interpret a statute, [parties in the suit] almost always find a champion on the Hill,” Lazarus said. “It takes a lot of visibility to make it pass.”
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