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The country’s highest court plays a critical role in all matters of federal law, yet it doesn’t always have the final say. Congress’s ability to check the court often depends on whether the court is interpreting the Constitution—in which case the court’s opinion is generally final—or a federal statute, which Congress can more readily amend.

Scott Skinner-Thompson

Last week, Democratic senator Elizabeth Warren of Massachusetts introduced legislation aimed to effectively overturn a Supreme Court decision reducing the power of federal agencies to interpret congressional statutes. The Stop Corporate Capture Act is aimed in part at reinstating the 40-year-old Chevron precedent and codifying the previous standard under which federal agencies were entitled to some deference when they were interpreting and implementing congressional statutes that contained some ambiguity. In addition, on Monday, President Joe Biden called for major Supreme Court reforms as well as a constitutional amendment to counteract the court’s recent ruling on presidential immunity.

With Republicans in control of the House, chances are slim that the Stop Corporate Capture Act will become law during this Congress. But it illustrates a key strategy Congress can use to address disagreements with Supreme Court interpretations of statutes. ���񱦵� Today sat down with associate law professor to discuss such strategies, as well as possible outcomes.

What can Congress do when it disagrees with a Supreme Court ruling?

When Congress disagrees with the Supreme Court about an interpretation of the Constitution, the only direct way to override that interpretation is for two-thirds of both houses of Congress to propose an amendment to the Constitution, which then must be ratified by three-quarters of the states. This is a difficult task that hasn’t been done in over 30 years. But sometimes Congress can achieve the same goals without amending the Constitution.

This involves Congress enacting statutes that extend constitutional principles through one of its enumerated powers. The key powers given to Congress by the Constitution are the ability to regulate commerce and attach conditions to money given to states, as well as the ability to enforce the so-called Reconstruction Amendments that sought to enshrine greater equality in the wake of the Civil War.   

But if the Supreme Court’s ruling is just interpreting a federal statute as opposed to the Constitution itself, then Congress can simply enact a new or revised statute correcting the Supreme Court, as it has on several occasions.

Does the Stop Corporate Capture Act seek to revise a statute or extend a constitutional norm? 

By its terms, the Warren bill is designed to revise a portion of the Administrative Procedure Act—a federal statute—to clarify that agencies have the power to interpret ambiguous federal statutes and that the courts should defer to such agency interpretations. Because the bill seeks to revise a statute and correct a Supreme Court interpretation of that statute, it is arguably perfectly permissible.

Although, to the extent the court’s decision in Loper hinged on constitutional separation of power principles—namely, that it is the court’s power to interpret and say what the law is—arguably, the Stop Corporate Capture Act goes too far by preventing courts from having the final say on the law. It’s a fine line.

Could Congress codify Roe v. Wade and the right to abortion?

The decision in Dobbs overturning the right to abortion was a decision grounded in the interpretation of the Constitution. Therefore, the court’s decision that the Constitution itself does not include the right to abortion is final. While Congress cannot reverse the court’s interpretation via statute, it could try to achieve the same goal through other means.

This has been done in the past, for example, when the Supreme Court concluded that the Equal Protection Clause prohibits only discrimination by government entities (not private entities), Congress extended nondiscrimination to the private sector through its power to regulate commerce. 

So arguably, Congress could pass a statute that guarantees the right to abortion to the extent that medical care involves commercial activities that Congress can permissibly regulate. This is not without controversy, however, because it would basically be saying, states, you can't prohibit abortion—which may run afoul of another constitutional principle embedded in the 10th Amendment, which basically says the federal government can’t tell the states what to do with their own laws.

If Congress were to try to use this power, arguably it infringes on states’ rights. But it is important to note the federal Partial-Birth Abortion Ban Act, which prohibits certain kinds of abortion procedures, was passed using the Commerce Clause power. 

Another way Congress could effectuate legal protections for abortion is by using Spending Clause power. Via this route, Congress would offer money to the states for, for example, health care, but could condition the receipt of such money on the state decriminalizing abortion under their own state law. States would then have a choice either to accept the money from the federal government or not. There are limits on that power, too, since it could be considered coercive.

What are the chances of federal legislation protecting abortion being passed?

It depends on what happens in the election. Democrats have said that codifying Roe v. Wade is a priority for them. If they gain majorities in both houses and the presidency, I imagine they will pass a bill. Whether that bill will be within their Commerce Clause power or their Spending Clause power or infringe on the 10th Amendment remains to be seen.

Historically, what happens when Congress interferes with Supreme Court decisions?

When congressional statutes are challenged as unconstitutional, those challenges start in a district court, then go to an appellate court and then the Supreme Court. The district court may enjoin enforcement of the law until the Supreme Court decides it. And on issues like this, with the increase in injunctions by district courts, chances are it won't go into effect until the Supreme Court decides.

What would you say to people who are very upset about recent Supreme Court rulings?

Depending on what issues you care about, it’s very normal to feel frustrated by this system which grants the Supreme Court pretty tremendous power. And make no mistake, our Constitution was explicitly designed to be “counter-majoritarian,” or in many ways, counter-democratic. It binds all of us. None of us were alive when the Constitution was first ratified, so we had no say in this document. It can be amended, but that’s really difficult. It requires societal consensus to amend.

That can be really frustrating because, even if you get the will of the people and the majority of Congress and the president, they can't necessarily do everything they want. But that design—that tension—was very intentional to prevent majorities at any given time from simply taking over the government. But if you're a person who cares about abortion rights, this counter-majoritarianism is very frustrating.

But there are other contexts where this counter-majoritarianism may be really important to you. For example, right now, the Constitution prohibits governments from discriminating on the basis of race. If Congress or states or any government were to pass a law that discriminates against people of color, it would be struck down because it goes against the Constitutional right, preventing that democratically enacted legislation from going into effect.

This isn’t to say necessarily that the balance between the Supreme Court and the political branches isn’t off-kilter at the moment, but the role of the Constitution and the court in limiting what Congress can do is an intentional part of our government’s design. Nevertheless, it may well be that the current court has aggrandized its power too much at the expense of Congress and executive agencies.