13 Pages Posted: 27 Jul 2014
Date Written: July 1, 2014
Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters of those overrides. When the Supreme Court rejects the statutory interpretations of agencies, supported by the Solicitor General, it does so at its peril. This suggests that the common wisdom — that agencies often have a better handle than courts on Congress’s meaning because of their closer connections with Congress (through oversight, expertise about the statute, informal communications, etc.) — is true. It also suggests that broad congressional delegation to agencies — traditionally viewed with suspicion by lawyers — may come with a silver interpretive lining.
The author makes no attempt to survey the richness of this gargantuan study nor the extraordinary effort it must have taken. It should be of interest to readers of court–congress interaction, students of agency action, scholars of statutory interpretation, and the separation of powers. Her aim is not to repeat the study, or even to summarize it, but to provide a parsimonious and helpful lens through which we may understand its intellectual assumptions and accomplishments. In part I, the author addressees its methodological virtues and vices. In part II, she posits a fairly parsimonious model that helps to explain the rich Christiansen and Eskridge findings. In part III, the author provides a brief comment on the authors’ recommendations for future action.
Keywords: Supreme Court, overrides, Congress, statutory interpretation, decision theory
JEL Classification: K00, K30, K39
Suggested Citation: Suggested Citation
Nourse, Victoria, Overrides: The Super-Study (July 1, 2014). Texas Law Review, Vol. 92, pp. 205-216, 2014. Available at SSRN: https://ssrn.com/abstract=2472111