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1702692898 The Court’s exercise of judicial review is an ever-present and renewable source of interbranch tension. While the courtstripping efforts were responses to the Supreme Court’s constitutional rulings, Congress pushes back regularly and more productively against the Court’s statutory decisions. In the early 1990s, Congress responded sharply to the Court’s rightward turn in a series of civil rights cases decided several years earlier. Legislation enacted in 1990 and 1991 overturned more than a dozen Supreme Court decisions.

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1702692900 The first bill that President Obama signed into law after taking office in January 2009 was the Lilly Ledbetter Fair Pay Act, enacted to overturn a 2007 Supreme Court ruling in an employment discrimination case. The Lilly Ledbetter episode is a useful example of the way in which a Supreme Court decision can propel an issue onto the country’s political agenda as well as its legal one. Lilly Ledbetter was a supervisor in a tire factory, the only woman to hold that position. She learned only after she retired that for years she had been paid less than any of the men. She brought suit under Title VII of the Civil Rights Act of 1964, which bars discrimination in the workplace on the basis of race and sex. The statute requires a lawsuit to be filed within 180 days of a “discriminatory act.” Although the employer’s discrimination against Ledbetter had begun years earlier, her lawyers argued that she was entitled to pursue her lawsuit under an interpretation of the 180-day time limit asserted by the federal agency in charge of administering the statute. Under the agency’s “paycheck accrual”rule, the clock started to run again each time the employer issued a paycheck that reflected the discriminatory treatment. Most of the federal circuits had endorsed the agency’s interpretation, but the Atlanta-based Eleventh Circuit, which heard Ledbetter’s case, rejected the agency’s rule, overturning a $3 million jury verdict in her favor and dismissing the lawsuit.

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1702692902 In a 5 to 4 decision, Ledbetter v. Goodyear Tire & Rubber Co.(2007), the Supreme Court agreed. The majority relied on earlier Supreme Court decisions that had applied Title VII’s 180-day limit to other discriminatory actions in the workplace, including termination, failure to promote, and failure to hire. The same rule should apply in the “slightly different context” of unequal pay, Justice Alito wrote for the majority. For the dissenters, Justice Ginsburg objected that the context was in fact crucially different. She said that while termination and failure to hire or promote are public acts, easily ascertained, employees of most private companies have no way of knowing what their fellow workers are being paid. Because Ledbetter received periodic raises along with the other employees, Justice Ginsburg observed, she had no reason to suspect that by the end of her career, her pay was as much as 40 percent less than that of her male co-workers.

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1702692904 Justice Ginsburg took the unusual step of announcing her dissent from the bench. Her action raised the decision’s visibility, converting what might otherwise have been seen as a technical ruling about a rather obscure provision of employment law into a new front in an ideologically infused battle over civil rights and the future of the Supreme Court. Justice Alito, at the time the newest justice, appointed by President George W. Bush, had been on the bench for less than eighteen months. The justice he succeeded, Sandra Day O’Connor, would most likely have voted the other way, and the outcome would have been different. Democrats in Congress began an immediate effort to overturn the decision by amending Title VII. Republicans in the Senate blocked the amendment’s passage in the spring of 2008. Lilly Ledbetter, an accidental heroine if there ever was one, became a powerful symbol of all that progressives feared from the newly consolidated Roberts Court and from the prospect of a Republican victory in the 2008 election. In the summer of 2008, Ledbetter addressed the Democratic National Convention, winning pledges of a renewed effort in Congress. The momentum carried the bill through Congress and onto the new president’s desk.

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1702692906 During the term that followed the uproar over its Ledbetter decision, with the issue of employment discrimination suddenly prominent, the Supreme Court appeared newly solicitous of workers with job discrimination complaints. A majority ruled in employees’ favor in several cases.

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1702692908 The Ledbetter episode came and went quickly. It is entirely predictable that other discrete disputes over the intent of Congress and the meaning of federal statutes will similarly come and go in the future. But there exists a more profound constitutionally-based struggle between the Court and Congress over the boundaries of congressional lawmaking authority, with origins deep in the country’s history. While it flares up and then recedes periodically, this struggle has no apparent end. Perhaps it is hardwired into the constitutional design.

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1702692910 Two periods sixty years apart provide bookends to an account of deep conflict between the political branches and the Supreme Court in the modern era. The first was the struggle over the New Deal. During President Franklin D. Roosevelt’s first term, a conservative majority on the Supreme Court invalidated major portions of the new administration’s economic recovery program. The Court held that a dozen acts of Congress, including the National Industrial Recovery Act and the Agricultural Adjustment Act, were beyond congressional authority either to regulate interstate commerce or to provide for the general welfare. The time had come, Roosevelt declared, “where we must take action to save the Constitution from the Court.”

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1702692912 In early 1937, following his reelection, Roosevelt proposed the Judiciary Reorganization Bill, more familiarly known as his“court-packing plan.” Under this proposal, the president could appoint a new justice for every justice over the age of seventy who had not retired—six new justices, given the age of the incumbents. The proposal sparked enormous controversy and failed when the Senate Judiciary Committee rejected it. Yet because the Court quickly began to uphold key New Deal provisions, including the Social Security Act and the highly pro-labor National Labor Relations Act, Roosevelt is regarded as having prevailed. Not for almost sixty years, a period that witnessed a dramatic expansion of the federal government’s presence in American life, would the Supreme Court again invalidate an act of Congress on the ground that the legislation exceeded the congressional commerce power.

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1702692914 When the battle resumed in 1995, the Court’s target was an obscure federal statute that barred possession of guns near school buildings. Since every state had a similar law, the fate of the federal law, the Gun-Free School Zones Act, was of little moment. Nonetheless, the decision invalidating the statute, United States v. Lopez, ushered in the Rehnquist Court’s federalism revolution. Writing for the majority, Chief Justice Rehnquist said that to uphold the statute would be to blur the “distinction between what is truly national and what is truly local.” This analysis implied an end to the long period during which the Court permitted Congress to decide for itself whether the distinction between national and local mattered for any particular piece of legislation. The vote was 5 to 4, with the dissenters quick to point out the implications. Justice Souter warned that “it seems fair to ask whether the step taken by the Court today does anything but portend a return to the untenable jurisprudence from which the Court extricated itself almost sixty years ago.”

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1702692916 There followed, in quick succession, a series of closely divided decisions that constricted congressional authority not only under the Commerce Clause but also under the Fourteenth Amendment. Section 5 of the Fourteenth Amendment gives Congress “the power to enforce, by appropriate legislation, the provisions of this article”—namely, the guarantees of due process and equal protection provided by the amendment’s Section 1. The question that came to the fore as the federalism revolution of the 1990s proceeded was the meaning of “enforce” and the breadth of Congress’s Section 5 authority. Was Congress’s power limited to enforcing only those interpretations of due process and equal protection that had been adopted by the Supreme Court? Or did Congress have substantive authority to legislate on the basis of its own constitutional views?

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1702692918 This issue was joined in a dispute over protection for the free exercise of religion that first divided the justices and then became the source of conflict between the Court and Congress. In a 1990 decision, the Court had withheld protection from individuals who claimed that their religious beliefs required an exemption from a generally applicable law. In that case, Employment Division, Department of Human Resources of Oregon v. Smith, the Court ruled that American Indians who used the hallucinogenic drug peyote in religious rituals were not constitutionally entitled to unemployment benefits when they were fired for violating their employer’s rule against drug use.

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1702692920 Congress responded promptly by passing a statute, provocatively titled the Religious Freedom Restoration Act (RFRA). The new law provided that a statute that appeared neutral on its face could not be applied in a way that placed a burden on the practice of religion unless the government could show that the burden served a “compelling interest.” A Roman Catholic parish in Boerne, Texas invoked RFRA, seeking to demolish an old church that was protected under a historic preservation code in order to build a new and bigger one. The church argued that RFRA entitled it to an exemption from the code. In response, the city argued the Religious Freedom Restoration Act was unconstitutional. The Section 5 enforcement power entitled Congress to enact legislation to remedy a violation of a constitutional right, the city argued, but not to legislate a more expansive definition of the right itself than the Supreme Court had provided.

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1702692922 In a 6 to 3 decision, City of Boerne v. Flores (1997), the Supreme Court agreed with the city. Congress’s enforcement power was merely “remedial and preventive,” the Court said, rejecting “any suggestion that Congress has a substantive, nonremedial power under the Fourteenth Amendment.” The majority opinion, written by Justice Kennedy, struck a formal separationist tone.“When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is,” Justice Kennedy wrote, invoking the familiar words of Chief Justice Marshall in Marbury v. Madison. He concluded: “Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.”

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1702692924 The Rehnquist Court majority used similar interpretations of Section 5 and of the Commerce Clause to overturn other statutes, including the Violence Against Women Act, which permitted women who were victims of gender-motivated violence to sue their attackers in federal court (United States v. Morrison, 2000). The Court also ruled that states could not be bound, as employers, by the federal laws against employment discrimination, either on the basis of age (Kimel v. Florida Board of Regents, 2000) or on the basis of disability (Board of Regents of the University of Alabama v. Garrett, 2003).

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1702692926 Then in 2003, led by Chief Justice Rehnquist himself, the Court unexpectedly reversed course, turning back a similar constitutional challenge to the Family and Medical Leave Act.

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1702692928 The law required state employers, along with private employers, to give their employees time off to attend to family emergencies. States that failed to follow the law were not immune from suit, Chief Justice Rehnquist wrote for the majority. With this decision, Nevada Department of Human Resources v. Hibbs, the federalism revolution appeared to have run its course. But history teaches that the apparent hiatus in this particular aspect of the contest between the Court and Congress is only temporary. Whether “temporary”means years or decades is an open question.

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1702692930 The struggle between the Court and the president, dramatically present in cases growing out of the Bush administration’s response to the terrorist attacks of September 11, 2001, has deep roots as well as current resonance. President Andrew Jackson’s often-quoted response to a Supreme Court decision favoring the Cherokee Indians—“John Marshall has made his decision. Now let him enforce it”—is in fact probably apocryphal. But it has lingered in the public imagination because it so well captures what we suppose presidents have wished they could say to the Supreme Court. Richard Nixon, ordered to surrender the incriminating Watergate tapes (United States v. Nixon, 1974), and Bill Clinton, deprived of immunity from a civil lawsuit by a woman claiming sexual harassment (Clinton v. Jones, 1997) are among the chief executives who come to mind.

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1702692932 The Supreme Court’s response to President Truman’s intervention in a wartime labor dispute in 1952 remains, more than half a century later, the symbol of the Court’s power to reject an urgent claim of presidential authority. Much more than a symbol, in fact: the Steel Seizure case, as Youngstown Sheet & Tube Co. v. Sawyer is commonly known, has been cited by the Court in recent years in resisting presidential claims of unilateral authority over detention policy at Guantanamo Bay.

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1702692934 Under Truman’s order, the federal government took control of the nation’s steel mills to forestall a steelworkers’ strike that could have shut down the country’s armament-making capacity in the midst of the Korean War. The industry went to Federal District Court to challenge the action. The case moved forward with a great sense of urgency, proceeding from the filing of the lawsuit to the final Supreme Court decision in less than two months. The Court, all the members of which had been appointed by Roosevelt and Truman, ruled against the president by a vote of 6 to 3. Justice Hugo L. Black’s majority opinion rejected the president’s claim that despite the absence of explicit statutory authority, his power to act was inherent in Article II of the Constitution. Justice Robert H. Jackson joined that opinion while also filing a separate concurring opinion. It is the Jackson opinion that is most often cited as defining the boundaries of presidential authority.

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1702692936 Justice Jackson divided the universe of possible presidential actions into three categories, which he described as “a somewhat over-simplified grouping of practical situations in which a president may doubt, or others may challenge, his powers.” First,“When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Second, Justice Jackson defined a “zone of twilight” in which “the president acts in absence of either a congressional grant or denial of authority.” He then “can only rely upon his own independent powers,” and whether that reliance is legitimate “is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Finally, “When the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” Jackson placed the steel seizure in the third category, finding that Congress had enacted three statutes that were inconsistent with the president’s action. “The executive action we have here originates in the individual will of the president and represents an exercise of authority without law,” he concluded.

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1702692938 Like President Truman, the second President Bush claimed that Article II itself gave him the authority to establish military commissions for the war-crimes trials of individuals held as enemy combatants at the United States naval station at Guantanamo Bay. And like the Court in the Steel Seizure case, the five justices in the majority in Hamdan v. Rumsfeld (2006) concluded that the claim of inherent authority was insufficient. In his majority opinion, Justice Stevens mentioned the Steel Seizure decision in a footnote. Justice Kennedy, in a concurring opinion joined by three other members of the majority, relied explicitly on Jackson’s Steel Seizure framework. Rather than place the president’s military commissions in Jackson’s second category (congressional silence), Justice Kennedy found that the commissions as designed by the president came within Jackson’s third category: presidential actions that were incompatible with explicit provisions of federal law.

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1702692940 The Hamdan case was neither the Court’s first encounter with the Bush administration’s detention policies, nor its last. Two years earlier, in Rasul v. Bush (2004), the Court rejected the administration’s effort to place the detainees beyond the jurisdiction of federal judges. The Court ruled that the military base in Cuba was functionally part of the United States, and thus that as a matter of statutory interpretation, federal courts had jurisdiction under the habeas corpus statute to hear the cases in which hundreds of detainees were challenging the basis for their open-ended confinement. Eventually, with Congress and a frustrated president working together, Congress stripped the federal courts of jurisdiction to hear any habeas corpus petition filed by a Guantanamo detainee. In Boumediene v. Bush, decided in 2008 by a vote of 5 to 4, the justices declared this court-stripping provision to be unconstitutional.

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1702692942 This intense cycle of action and reaction, the ball passing rapidly back and forth between the Court and the political branches, then came to a pause as a new president took up residence in the White House. Cases reflecting domestic rather than foreign policy concerns began to fill the judicial pipeline. No one could suppose, however, that the pause in the age-old contest between the Supreme Court and the president was more than momentary.

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