# To allow Congress to reverse the judgments of the United States Supreme Court **URL:** \ **Category:** Great Debates\ **Created:** [May 5, 2004, 4:53am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588 "2004-05-05T04:53:20Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![iamme99](https://avatars.discourse-cdn.com/v4/letter/i/57b2e6/32.png) [@iamme99](https://boards.straightdope.com/u/iamme99)\ **Post date:** [May 5, 2004, 4:53am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/1 "2004-05-05T04:53:20Z")
I came across this here: [http://irregulartimes.com/index.html](http://irregulartimes.com/index.html) > [@](#): > > Republicans Go Nuts: H.R. 3920 > > How downright nutty is a Republican Congress left unchecked by a Democratic President? Twenty-six Republican members of the House of Representatives have introduced a bill, [H.R. 3920](http://thomas.loc.gov/cgi-bin/bdquery/z?d108:HR03920:@@@L&summ2=m&), entitled “To allow Congress to reverse the judgments of the United States Supreme Court.” Read the text of the bill, and you’ll see that’s exactly what the bill is trying to do: > "SEC. 2. CONGRESSIONAL REVERSAL OF SUPREME COURT JUDGMENTS. > > The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court– > > (1) if that judgment is handed down after the date of the enactment of this Act; and > > (2) to the extent that judgment concerns the constitutionality of an Act of Congress. > > SEC. 3. PROCEDURE. > > The procedure for reversing a judgment under section 2 shall be, as near as may be and consistent with the authority of each House of Congress to adopt its own rules of proceeding, the same as that used for considering whether or not to override a veto of legislation by the President." > > What happens if the Congress is able to decide that a law is Constitutional if it says it is? Well, then, the Congress can pass any law it wants to, regardless of whether it actually follows the Constitution or not. I find this to be quite scary, not the fact that is has next to zero chance of ever being introduced as a real bill, but the fact that it WAS introduced at all and that there are actually 26 Representatives backing it. It flies directly in the face of the Constitutional checks and balances system (see - [Separation of Powers](http://www.usconstitution.net/consttop_sepp.html) ). Shouldn’t we expect that our Congresspeople have at least a minimum knowledge of the Constitution and history? IYO, does this bill have any merit? Would you support or be against this bill (or something similar), should it ever make its way onto the floor of the House or Senate? What are your thoughts? ---
**Author:** ![AskNott](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asknott/32/5790_2.png) [@AskNott](https://boards.straightdope.com/u/AskNott)\ **Post date:** [May 5, 2004, 5:33am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/2 "2004-05-05T05:33:26Z")
This is a pure flight of fancy and ignorance, but it’s a vote-getter grandstanding kind of _gesture._ Somebody is drunk with the power of owning both houses of congress and the white house.They’ve mistaken the difference between a law and a constitutional amendment. ---
**Author:** ![Doctor\_Who](https://avatars.discourse-cdn.com/v4/letter/d/ed8c4c/32.png) [@Doctor\_Who](https://boards.straightdope.com/u/Doctor_Who)\ **Post date:** [May 5, 2004, 5:35am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/3 "2004-05-05T05:35:23Z")
> [@AskNott](#): > > They’ve mistaken the difference between a law and a constitutional amendment. Hear, hear. - Peter Wiggen ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 5, 2004, 5:38am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/4 "2004-05-05T05:38:40Z")
Don’t worry about it… Congress is always pulling stuff like this. Google “RFRA” or “religious freedoms restoration act”… Basically, every know and then Congress considers (and occasionally even _passes_) a bill saying “Now look here, SCOTUS, we think you’re wrong about this so now you can’t reverse our judgments.” When they pass, SCOTUS naturally strikes them down as unconstitutional. If this one passes, the same thing will happen. ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [May 5, 2004, 1:57pm UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/5 "2004-05-05T13:57:50Z")
I agree that it is pretty nutty. Congress already has, in a limited sense, the power to overturn Supreme Court rulings. I.e., if the ruling is a matter of interpretting a law passed by Congress and Congress doesn’t like the Supreme Court’s interpretation then they can simply pass, by simple majority in both House and Senate (unless they have to override a Presidential veto), another law that makes the interpretation they hold clearer. If the ruling has a Constitutional basis, then Congress can propose an amendment to the Constitution which they then need to pass by 2/3 majorities plus get 3/4 of the states to pass (by simple majorities??) in the state legislatures…Or something like that. And, this barrier for changing the Constitution is high for good reason, e.g., so we don’t have the majority trampling on the rights of minorities. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [May 5, 2004, 2:21pm UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/6 "2004-05-05T14:21:16Z")
It is my understanding that the British House of Commons can overrule the highest court there. British dopers; True? and how has it worked out? P.S. I’m not in favor of such a thing here. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [May 5, 2004, 2:27pm UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/7 "2004-05-05T14:27:21Z")
Every few years the nut-jobs in Congress try to get something like this passed. It rarely makes it out of committee, but said nut-jobs can then go back to their equally nut-jobby constituents and say “Look…I tried. Give me more money.” I wouldn’t worry about it until it gets passed by both Houses, which is nigh-on impossible, even _with_ republican control. Contrary to popular opinion, not _all_ republicans are right-wing religious fanatics. 😃 ---
**Author:** ![AHunter3](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ahunter3/32/368_2.png) [@AHunter3](https://boards.straightdope.com/u/AHunter3)\ **Post date:** [May 5, 2004, 4:33pm UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/8 "2004-05-05T16:33:03Z")
I would think that at this juncture the right wing politicians would fear such a law more than they’d favor it. The political tides could quite easily lead to a Democratic majority House and Senate and a Democratic Prez (possibly within the year—none of the three are an unreasonable stretch, although 3-for-3 would be beating the long odds), whereas constituting a liberal Supreme Court would take much longer. ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [May 5, 2004, 5:36pm UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/9 "2004-05-05T17:36:48Z")
If it were go ever get out of committee, it won’t fly. If it were to be passed by the Congress and signed into law, there would be an immediate challenge. SCOTUS would rule it unconstitutional and be done with it. Apparently, the co-sponsors are short on their history or they would know the Marbury v. Madison settled the issue long ago. In addition, Article II., Section 2., of the Constitution states, “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Congress cannot override any part of the Constitution by law. Congress can only do so by amendment. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 5, 2004, 5:52pm UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/10 "2004-05-05T17:52:29Z")
What if this law passed, and the Supremes found it to be unconsitutional? Seriously. That would be an interesting showdown! It appears to me that it is an attempt to amend the constitution by shortcutting the process, i.e. elimating the need for 3/4 of the states to ratify an amendment. I think if you polled Americans, most of them would agree that this law is a good idea. That’s actually the scary part. But I agree with those posters that say this will never fly. You can’t get all worked up everytime some group of Congressmen propose a silly law-- it happens too, too often. Fortuantely, cooler heads prevail 99.9% of the time. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 5, 2004, 10:06pm UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/11 "2004-05-05T22:06:47Z")
> [@David Simmons](#): > > It is my understanding that the British House of Commons can overrule the highest court there. British dopers; True? and how has it worked out? The British Parliament can change the law as declared by the House of Lords in its judicial capacity, by enacting a statute. The best example was the _War Damage Act 1965_ which overturned the decision of the House of Lords in its judicial capacity in [Burmah Oil Ltd. v. Lord Advocate](http://lawofwar.org/burmah_oil_case.htm). The background is that during WWII in Burma, the British Army destroyed a refinery owned by Burmah Oil Ltd. to keep it from falling into the hands of the advancing Japanese Army. Obviously, an oil refinery is a very important resource during a war, hence the decision to destroy it. After the war, Burmah Oil sued the British government for the cost of the refinery. Their argument was that while the common law recognised the right of the government to order the destruction of private property to keep it out of the hands of the enemy, that power only applied to destruction in the face of the enemy. On the facts of the case, the Japanese Army was some distance away when the British Army destroyed the refinery, so the exceptional power of the government to destroy private property did not apply. The House of Lords in its judicial capacity agreed with the oil company’s argument and gave judgment for the company, finding the British government liable for the loss. The British government passed the _War Damage Act_ in response. Their concern was that the common law doctrine had evolved in a time when warfare was much slower than today. The reason for destroying the refinery even though not in the face of the enemy was valid, and there was no telling how quickly the Japanese army could arrive. As well, throughout the war the British Army had done similar pre-emptive destructions to keep valuable resources out of enemy hands, so if the decision stood, the pay-out to other plaintiffs could be very large. So, they passed the Act, which is only two sections long. (Can’t find it on-line, sorry.) The first section of the Act changed the common law rule for war damage and eliminated the “in-the-face-of-the-enemy” requirement, both prospectively and retrospectively. That eliminated all other claims arising out of WWII. The second section barred Burmah Oil Ltd. from recovering on its judgment from the House of Lords, effectively overturning the decision of Britain’s highest court. ---
**Author:** ![rjung](https://avatars.discourse-cdn.com/v4/letter/r/45deac/32.png) [@rjung](https://boards.straightdope.com/u/rjung)\ **Post date:** [May 5, 2004, 11:48pm UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/12 "2004-05-05T23:48:22Z")
> [@John Mace](#): > > What if this law passed, and the Supremes found it to be unconsitutional? Seriously. That would be an interesting showdown! It’s a no-brainer – if the Supreme Court interprets the law as unconstitutional, then it is, and that’s the end of it. The bill’s supporters in Congress can scream “We passed this unconstitutional law allowing us to make this law constitutional!”, but even a six-year-old can spot the logical fallacy involved. > [@John Mace](#): > > I think if you polled Americans, most of them would agree that this law is a good idea. That’s actually the scary part. I blame talk radio. 😉 ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 6, 2004, 12:06am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/13 "2004-05-06T00:06:22Z")
> [@rjung](#): > > It’s a no-brainer – if the Supreme Court interprets the law as unconstitutional, then it is, and that’s the end of it. The bill’s supporters in Congress can scream “We passed this unconstitutional law allowing us to make this law constitutional!”, but even a six-year-old can spot the logical fallacy involved. Is it? Is the Constitution really so clear about the Supreme Court being able to declare a law unconstitutional? ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [May 6, 2004, 12:18am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/14 "2004-05-06T00:18:08Z")
> [@](#): > > It’s a no-brainer – if the Supreme Court interprets the law as unconstitutional, then it is, and that’s the end of it. The bill’s supporters in Congress can scream “We passed this unconstitutional law allowing us to make this law constitutional!”, but even a six-year-old can spot the logical fallacy involved. OK, so the law’s not actually constitutional. Then what? As Andrew Jackson said, “John Marshall has made his decision, now let him enforce it.” ---
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [May 6, 2004, 2:49am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/15 "2004-05-06T02:49:37Z")
> [@John Mace](#): > > Is it? Is the Constitution really so clear about the Supreme Court being able to declare a law unconstitutional? IANAL, but I believe that the decision of the SCOTUS in _Marbury vs. Madison_ was that, yes, the Constitution gives SCOTUS the power of judicial review. Zev Steinhardt ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [May 6, 2004, 3:25am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/16 "2004-05-06T03:25:34Z")
> [@zev\_steinhardt](#): > > IANAL, but I believe that the decision of the SCOTUS in _Marbury vs. Madison_ was that, yes, the Constitution gives SCOTUS the power of judicial review. > > Zev Steinhardt It doesn’t make a bit of difference now whether or not the Constitution is clear about the Supreme Court’s power to decide constitutionality. Over 200 years of court decisions agree with no dissent to the Court is the body that decides. Congress can always try to rework the law and pass the reworked version to try to meet the Court’s objections. ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [May 6, 2004, 3:36am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/17 "2004-05-06T03:36:26Z")
> [@zev\_steinhardt](#): > > IANAL, but I believe that the decision of the SCOTUS in _Marbury vs. Madison_ was that, yes, the Constitution gives SCOTUS the power of judicial review. > > Zev Steinhardt Yup. And there’s no more important case in American Constitutional law. It’s usually the first case that a law student reads in his Con Law class. It’s not even a debateable issue in mainstream U.S. politics or law. The Supreme Court speaks, and that’s it, unless the Constitution is amended. (Arguably, Congress and the President could collude to (a) increase the size of the Court and (b) fill the vacancies with enough stooges to issue a contrary ruling, but that hasn’t even been threatened for 70 years, it was controversial even then, and it’s never actually happened.) ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [May 6, 2004, 4:04am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/18 "2004-05-06T04:04:15Z")
> [@Random](#): > > … (b) fill the vacancies with enough stooges to issue a contrary ruling, but that hasn’t even been threatened for 70 years, it was controversial even then, and it’s never actually happened.) Controversial? Controversial!!? Is that the strongest word you could find? I’ve got to admit I can’t think of the right word but when FDR tried to ‘pack the court’ as it was described, the roof fell in on him. ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [May 6, 2004, 4:19am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/19 "2004-05-06T04:19:49Z")
You do realize that FDR’s threat worked, right? He didn’t have to follow through, because the existing Court caved and reversed itself. (Otherwise called “The Switch in Time That Saved Nine.”) ---
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [May 6, 2004, 4:34am UTC](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588/20 "2004-05-06T04:34:51Z")
It has always seemed to me that in this game of checks and balances, SCOTUS has always had the upper hand. While a decision of the President is easy enough to overturn, as is a decision of Congress, a decision of SCOTUS is more-or-less written in stone unless a Constitutional amendment is passed (or a future court reversing the present one). And given the fact that SCOTUS is such a small body with very little turnover, ISTM that their decisions far outweight those of the other two branches. If I may hijack the OP a bit and present it a bit differently. I agree that having legislators overrule a SCOTUS decision is not necessarily a good thing. Firstly becuase SCOTUS can overturn their decisions , secondly, because partisan politics should be minimized in court decisions and thirdly, many legislators are not lawyers and are not trained in law. However, I was wondering about a super-body of judges. For example, suppose we take all the judges that are on the Circuit Courts. They will form the Court of Judicial Review. A decision of SCOTUS could be sent to the CJR if: 1. The vote is not overwhelming (i.e. only 5-4 or 6-3 decisions could be reviewed. If a matter was so obvious that at least 7 members of SCOTUS could agree on it, then let it stand). 2. 60% of both houses of Congress agree to send it to CJR. It shouldn’t be a simple majority, but I think 66% is too high. 3. The decision has to be based on Constitutional grounds. A decision that is not Constitutional in nature (such as a dispute between states, for example) is not reviewable by the CJR. The CJR (not meeting as one body, but individually) would review the SCOTUS decision and decide whether or not the decision of SCOTUS was correct from a Constitutional standpoint (i.e. not whether or not they agree with it as a matter of public policy, but strictly on Constitutional grounds). If two-thirds of the CJR believe that SCOTUS blew it (based on a simple yes-no vote), then the decision would be struck down. This process provides some advantages: 1. It makes SCOTUS accountable. As it is, aside from public outcry, SCOTUS is accountable to no one. SCOTUS could (theoretically) find a right to free hot dogs at the ballpark in the Constitution and there is nothing anyone (short of a Constitutional amendment) could do about it. It’s possible that five corrupt judges could do serious harm (no, I’m not accusing anyone). While we’ve been fortunate that this hasn’t come to pass, I’m not so crazy about putting so much power in the hands of so few. This process will leave the vast majority of SCOTUS decisions intact, but will allow for cases where the justices go too far over the top. 2. It still leaves the ultimate decision with those who are knowledgeable about the law and the Constitution. You won’t have some yokel party hack who managed to get his district to elect him reviewing and making decisions on the Constitutionality of legislation. 3. It will take a lot of effort to overturn a SCOTUS decision. It won’t be done by a simple majority of Congress or even 100% of Congress. Congress (with a super-majority) may ask the judges to review the decision. And then it would take 2/3 of the CJR to strike down the decision. So, what’s your opinion? Zev Steinhardt [Next page](https://boards.straightdope.com/t/to-allow-congress-to-reverse-the-judgments-of-the-united-states-supreme-court/243588.md?page=2)