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Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides

Deborah A. Widiss

Indiana University Maurer School of Law

January, 26 2009

Notre Dame Law Review, Vol. 84, p. 511, 2009
Brooklyn Law School, Legal Studies Paper No. 129

In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. One might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using several examples from employment discrimination jurisprudence, an area of the law where Congress frequently overrides Supreme Court decisions, this Article demonstrates that the Supreme Court and lower courts often narrowly construe the significance of congressional overrides and instead rely on the prior judicial interpretation of statutes as expressed in overridden precedents. I call this phenomenon reliance on "shadow precedents."

The Article shows how reliance on shadow precedents threatens legislative supremacy and undermines the standard rationales offered for adherence to precedent. It argues that, in drafting overrides, Congress should strive to clarify the extent to which it disagrees with the prior judicial interpretation. It also argues that courts should adopt interpretive conventions that are more respectful of the significance of the enactment of an override: (1) a rebuttable presumption that an override supersedes the judicial interpretation of the pre-existing statutory language, thus requiring "fresh" interpretation of the original statute as well as the override, and (2) a rule that overridden interpretations are no longer binding on lower courts.

Number of Pages in PDF File: 75

Keywords: Statutory interpretation, override, legislative supremacy, precedent, separation of powers, employment discrimination, antidiscrimination, Ledbetter, Price Waterhouse, Pregnancy Discrimination Act

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Date posted: January 26, 2009  

Suggested Citation

Widiss, Deborah A., Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides (January, 26 2009). Notre Dame Law Review, Vol. 84, p. 511, 2009; Brooklyn Law School, Legal Studies Paper No. 129. Available at SSRN: http://ssrn.com/abstract=1333209

Contact Information

Deborah A. Widiss (Contact Author)
Indiana University Maurer School of Law ( email )
211 S. Indiana Avenue
Bloomington, IN 47405
United States
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