The key to saving us from Gorsuch and Kavanaugh lies in an obscure law signed by George H.W. Bush
If Democrats regain Congress and the White House, they will spend their time in power at war with an increasingly partisan Supreme Court. They can also learn a lot about how to fight such a Court from a law signed by Republican President George H.W. Bush.
As a U.S. Senate candidate in 1964, Bush took a deplorable position on civil rights, labeling the Civil Rights Act of 1964 — which banned employment discrimination and whites-only lunch counters, among other things — a “radical” piece of legislation that was “passed to protect 14 percent of the people.”
Bush soon abandoned these views. As a new congressman, Bush supported a ban on housing discrimination. And as president, Bush signed two significant civil rights laws — the Americans with Disabilities Act and the Civil Rights Act of 1991. While the first is better known, the second could offer a path forward to Democrats reeling from a stolen Supreme Court seat and the appointment of a man credibly accused of attempted rape to the same Court.
The Civil Rights Act of 1991 offered a swift corrective to the Supreme Court. In 1989, the Court handed down five decisions that “substantially eroded” the federal ban on employment discrimination. One of the major purposes of the law Bush signed was to override these decisions and replace them with rules more protective of civil rights (at the time, some members of the employer defense bar complained that the law reached “beyond a simple ‘restoration’ of prior laws” to enact a regime that was more protective of civil rights than the one that existed before 1989).
Bush initially vetoed a stronger version of this law, known as the Civil Rights Act of 1990. Nonetheless, the bill Bush ultimately signed into law represents a kind of congressional oversight of the Court that has largely faded into memory in an age of legislative dysfunction and partisan polarization.
Partisans without supervision
Legislative overrides of the Supreme Court are becoming much less common. As a 2012 study by law professor Rick Hasen found:
in the last two decades the rate of Congressional overriding of Supreme Court statutory decisions has plummeted dramatically, from an average of twelve overrides of Supreme Court cases in each two-year Congressional term during the 1975–1990 period, to an average of 5.8 overrides for each term from 1991 to 2000, and to a mere 2.8 average number of overrides for each term from 2001 to 2012.
The early periods in Hasen’s study frequently saw “bipartisan overrides” where “Democrats and Republicans come together to reverse the Supreme Court.” By the Bush and Obama years, however, legislative overrides of the Supreme Court were typically partisan affairs that appeared to “to require conditions of near-unified control of both branches of Congress and the presidency.”
The result is a Supreme Court that’s largely unsupervised.
In the past, Congress and the Supreme Court were engaged in a “dialogue on statutory interpretation,” as Hasen writes. When the Court erred, Congress frequently stepped in to correct that error. When the Court stumbled too far to the right, Congress could restore a law’s original purpose.
Now, however, this process has largely broken down — at the same time as the Court itself has grown increasingly partisan.
Supreme Court justices have always been creatures of ideology, but the period from 2010 to the present — after liberal Republican Justice John Paul Stevens left the bench — is the first time the Court’s been split between a conservative faction made up entirely of Republicans and a liberal faction made up entirely of Democrats.
On top of all of that, the Court’s newest member, Brett Kavanaugh, is a longtime Republican operative who seemed to threaten revenge against Democrats during his confirmation hearing. “What goes around comes around,” a visibly enraged Kavanaugh told Democratic senators probing allegations that he tried to rape psychology professor Christine Blasey Ford while he and Ford were both in high school.
A 30-year backlog
Legislative overrides of the current Supreme Court are unlikely so long as Republicans control either house of Congress or the presidency.
But if Democrats regain control of Congress and the White House in 2021, they won’t keep it forever. Chances are that the party of Neil Gorsuch and Brett Kavanaugh will control at least one house of Congress or the presidency most of the time.
That means that a new Democratic majority cannot reasonably hope to restore a norm where Congress frequently overrides the Court. The best they can hope for is a transient majority that allows them to overrule a bunch of erroneous decisions in a rush — legislation much like the Civil Rights Act of 1991.
So what could a hypothetical Civil Rights Act of 2021 contain?
A full answer to that question would be quite long — it has, after all, been a long time since Congress made a concerted effort to hunt down and overrule Supreme Court decisions that misread existing statutes. Nevertheless, the following decisions would be ripe for overruling in a Democratic Congress:
- Restore the Voting Rights Act: The Supreme Court’s decision in Shelby County v. Holder, which effectively deactivated a provision of the Voting Rights Act requiring states with a history of racial voter suppression to “preclear” new voting laws with officials in Washington, DC, was technically a constitutional decision and could not be outright overruled by Congress. Nevertheless, on its face, Shelby County permits Congress to develop a new formula to determine which states should be subject to federal supervision. A law enacting such a formula would also allow Congress to sanction states such as Wisconsin, which historically were not targeted by the Voting Rights Act, but which have become havens for voter suppression.
- Abolish the Supreme Court’s entire forced arbitration jurisprudence: In 1925, Congress enacted the Federal Arbitration Act so that “merchants with relatively equal bargaining power” could agree to resolve their disputes through arbitration instead of through potentially more costly litigation. In recent decades, however, the Court reinterpreted this law to permit business to force their workers and customers to sign away their right to sue in a real court, and shunt these workers and consumers into an arbitration system that overwhelmingly favors corporate parties. Some of the Court’s arbitration decisions outright ignore the text of the statute, or even read its words to do the opposite of what they say.
- Require religious conservatives to obey the law: In Burwell v. Hobby Lobby, the Supreme Court held, for the first time, that religious objectors could refuse to follow federal laws even when that refusal would undermine the rights of third parties. Among other things, Hobby Lobby was at odds with the Supreme Court’s previous decision in United States v. Lee, which held that “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
- Restore the law preventing bosses from sexually harassing their subordinates: Federal law provides very robust protections to workers who are harassed by their “supervisor” — often, the employer is automatically liable for such harassment. If a worker is harassed by a mere “co-worker,” however, the company is only liable if they have “been negligent either in discovering or remedying the harassment.” Yet, in Vance v. Ball State University, the Supreme Court defined the word “supervisor” so narrowly that it it practically meaningless. Under Vance, a worker’s boss only counts as a “supervisor” if they have the power to make a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” The problem with this rule is that, in many modern employers, the final power to make such decisions rests with distant human resources offices, not with actual supervisors. (Under Vance, for example, neither my day-to-day editor nor the editor-in-chief of ThinkProgress count as my “supervisor,” even though both of them have the authority to direct every moment of my working day.)
- Restore anti-retaliation protections for victims of discrimination: Federal civil rights laws do not simply ban various forms of discrimination, they also prevent employers from retaliating against employees who allege discrimination. As a general rule, victims of discrimination may also prevail in “mixed-motive” suits — that is, if unlawful discrimination is “a motivating factor” in an employer’s decision to sanction an employee, the employer cannot defeat the claim solely by showing that “other factors also motivated” the decision. In University of Texas Southwestern Medical Center v. Nassar, however, the Supreme Court eliminated mixed-motive suits for victims of retaliation.
- Restore the Age Discrimination in Employment Act: Nassar build on a previous decision, Gross v. FBL Financial Services, which killed mixed motive suits in age discrimination cases.
Again, this is a non-exhaustive list. Even in the best case scenario for Democrats, they will not be able to pass a Civil Rights Act of 1991-style omnibus for at least two years. So there is plenty of time to identify of comprehensive list of Supreme Court decisions that are ripe for congressional override.
There’s also good reason for Democrats to be aggressive in drafting such a list. Omnibus legislation wiping away 30 years of erroneous precedents will send a clear message to the Supreme Court that there’s a new sheriff in town. That may discourage the Court from engaging in similar overreach in the future.