Volume 82, Number 5

November 2007

Judicial Decisions as Legislation: Congressional Oversight of Supreme Court Tax Cases, 1954–2005

Nancy Staudt, René Lindstädt, Jason O’Connor

This Article offers a new understanding of the dynamic between the Supreme Court and Congress. It responds to an important literature that for several decades has misunderstood interbranch relations as continually fraught with antagonism and distrust. This unfriendly dynamic, many have argued, is evidenced by repeated congressional overrides of Supreme Court cases. While this claim is true in some circumstances, it ignores the friendly relations that exist between these two branches of government—relations that may be far more typical than scholars suspect.

This Article undertakes a comprehensive study of congressional responses to Supreme Court tax cases and makes a surprising finding: Overrides, although the main focus of the extant literature, account for just a small portion of the legislative activity responding to the Court. In fact, Congress is nearly as likely to support and affirm judicial decisionmaking through the codification of a case outcome as it is to reverse a decision through a legislative override. To investigate fully the nature of congressional oversight of Supreme Court decisionmaking, this Article undertakes both qualitative and quantitative analyses of different types of legislative review of Supreme Court decisions—examining codifications and citations, as well as overrides, in legislative debates, committees, and hearings. The result is a series of important and robust findings that challenge and build on the Court-Congress literature, identifying the legal, political, and economic factors that explain how and why legislators take notice of Supreme Court cases.

The study reveals a complex and nuanced interbranch dynamic and shows that the Justices themselves affect the legislative agenda to a greater extent than previously understood. This result challenges scholars who have questioned whether the Supreme Court should have jurisdiction over complex issues, such as those in the economic context, in which the Justices may lack sufficient training. This Article argues that scholars have little need to worry about Court decisionmaking in these areas: Not only do legislators routinely review the Court’s decisions, but they also frequently confirm the outcomes as valuable contributions to national policymaking via the codification process.

Neuroimaging and the “Complexity” of Capital Punishment

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over the long term, these same experts (and their like-minded colleagues) hope to appeal to the recent findings of their discipline to embarrass, discredit, and ultimately overthrow retributive justice as a principle of punishment. Taken as a whole, these short- and long-term efforts are ultimately meant to usher in a more compassionate and humane regime for capital defendants.

This Article seeks to articulate, analyze, and provide a critique of this project according to the metric of its own humanitarian aspirations. It proceeds by exploring the implications of the project in light of the mechanics of capital sentencing and the heterogeneous array of competing doctrinal rationales in which they are rooted. The Article concludes that the project as currently conceived is internally inconsistent and would, if implemented, result in ironic and tragic consequences, producing a death penalty regime that is even more draconian and less humane than the deeply flawed framework currently in place.


The “Marriage Gap”: A Case for Strengthening Marriage in the 21st Century

Leah Ward Sears, Chief Justice of Georgia

Brennan Lecture

In this speech delivered for the annual Justice William J. Brennan, Jr., Lecture on State Courts and Social Justice, Leah Ward Sears, Chief Justice of the Georgia Supreme Court, reflects upon the state and significance of marriage as we head into the twenty-first century. Chief Justice Sears calls attention to social science evidence that shows that the health of the institution of marriage is directly related to the health of our children and communities. Yet today, alarming numbers of children do not have the support of two married parents in the home. Single parenthood, divorce, and cohabitation are at all-time highs, and a great many of these families are failing. Through a review of social science evidence, Chief Justice Sears shows the far-reaching implications that family fragmentation, a potentially self-perpetuating phenomenon, can have for judicial backlog, child well-being, and community health. She unearths an opportunity gap that renders children from fragmented families less likely to succeed and communities where marriage is the exception more prone to violence and crime. Given these dramatic family transformations and their implications, Chief Justice Sears discusses how society, through its laws, should respond. Emphasizing the emotional, financial, and social benefits flowing to children and communities from marriage, Chief Justice Sears suggests dedicating a renewed vigor to exploring ways that law can promote the benefits of marriage. While she cautions that these changes should not be implemented to the detriment of existing legal policies that protect and support children regardless of the family form they are born into, she challenges society to renew its commitment to marriage in this country, thereby manifesting the United States’ commitment to principles of equality and opportunity for all children.


Learning the Language: An Examination of the Use of Voter Initiatives to Make Language Education Policy

Learning the Language: An Examination of the Use of Voter Initiatives to Make Language Education Policy

In recent years, several states have used initiatives to enact statewide mandates requiring children to learn English by being taught only in English, without instruction in their native language. Using Massachusetts as a case study, this Note argues that this way of deciding the issue—a voter initiative that mandates a uniform method of instruction—is not an appropriate way to make language education policy. Language education is not the type of issue that should be decided via direct democracy because (1) direct democracy does not give adequate protection to minorities, (2) it exacerbates the tendency to make decisions about sensitive immigration issues on the basis of rhetoric, emotional reactions, and campaign politics, and (3) it gives uninformed drafters and voters the power to make complex policy decisions implementing particular educational methods about which they know very little. Further, mandating a uniform method of instruction is undesirable because the empirical literature on which methods of language education are most effective is so divided and confused that it is illogical to mandate the use of only one method. Local education administrators should instead be left free to experiment within the spectrum of language education programs. Also, by mandating a uniform method of instruction for all children in all communities, the initiative does not have the flexibility to recognize and accommodate the many legitimate interests at stake, including individual children and their families, minority groups, local communities, and the democratic interest of the general public. Finally, the Note examines a better way to decide this question, with a system that gives schools freedom to experiment and respond to the needs of particular communities, and that gives parents more input and choice.

Selective Entrenchment Against State Constitutional Change: Subject Matter Restrictions and the Threat of Differential Amendability

Russell Patrick Plato

In Wirzburger v. Galvin, Massachusetts citizens challenged the Massachusetts Constitution’s Excluded Matters provision, which is a type of subject matter restriction that prohibits popularly initiated amendment of enumerated portions of the state constitution. Because plaintiffs could not show a suspect class, discriminatory intent, or a direct impact on speech, the First Circuit applied deferential forms of First Amendment and Equal Protection Clause review and the challenge failed.

This Note argues that the current framework used to evaluate subject matter restrictions, exemplified by Wirzburger, provides insufficient protection against the serious harms such restrictions create. Subject matter restrictions create differential amendability, which makes it harder for citizens to change some aspects of a constitution than to change others. Differential amendability is a serious harm that distorts the design of well-functioning constitutional amendment procedures and threatens longstanding principles of popular sovereignty. Furthermore, this distortion creates a significant risk that barriers to amendment are being employed, intentionally or otherwise, to entrench temporary political supermajorities against future constitutional change.

This Note explores these risks and the possibility of controlling them through a federal constitutional analysis that draws on history, functional considerations, and existing voting rights case law. All three factors weigh in favor of engaging in a fundamental rights inquiry into subject matter restrictions. That inquiry might invalidate most subject matter restrictions, but its most significant contribution would be the cultivation of an interinstitutional dialogue over the possibilities and dangers of substantive restrictions on constitutional change at the state level.

Imposing Limits on Prosecutorial Discretion in Corporate Prosecution Agreements

Erik Paulsen

In late 2006, the Department of Justice (DOJ) overhauled its internal policy regarding the prosecution of corporate entities. The new policy—expressed in the “McNulty Memo”—was issued as a direct response to charges that the DOJ had abused its leverage over the companies it targeted for criminal prosecution, specifically with regard to compelled cooperation. The McNulty Memo addressed these charges, in part, by restricting the discretion of individual prosecutors and requiring approval by the Deputy Attorney General on significant prosecutorial decisions.

While the changes ushered in by the McNulty Memo are a promising first step, they will not remedy all of the potentially abusive practices that mar the prosecution of corporate entities—particularly in regard to the use of deferred and non-prosecution agreements. At first blush, deferred and non-prosecution agreements appear to present a win-win situation: They offer the benefits of criminal punishment without the negative collateral consequences that flow from criminal charges. Their increased use, however, has revealed a different picture. By removing the threat of collateral consequences, deferred and non-prosecution agreements allow individual prosecutors to take full advantage of the unique weaknesses of corporations in the criminal justice system. These weaknesses provide prosecutors with a dangerous amount of leverage over the corporations they target, creating a bargaining imbalance and a new threat of abuse.

The potential for abuse that flows from the use of deferred and non-prosecution agreements should be addressed by restricting the discretion of individual prosecutors. This Note argues that the DOJ should look to the solution offered in the McNulty Memo and require that individual prosecutors receive permission from the Deputy Attorney General before entering into any deferred or non-prosecution agreement.

Constitutional Default Rules and Interbranch Cooperation

Tara Leigh Grove

This Note explores whether “constitutional default rules,” or judicially crafted constitutional rules designed to spur legislative action, can generate interbranch cooperation in the area of criminal procedure. The Note looks at two types of constitutional default rules—the “model” default rule and the “penalty” default rule—in theory and in practice, examining how the Court has employed such rules to generate a dialogue with Congress in order to implement constitutional rights. The Note argues that while there have been notable failures by the Court in using the default rule to elicit a rights-protective legislative reaction (namely, in the case of Miranda v. Arizona) under the right conditions, the constitutional default rule may still be a viable tool for spurring progressive legislative policy and reform of the criminal justice system.