Why Congress Does Not Challenge Judicial Supremacy

Abstract

Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other way to advance the same policy priorities. Relatedly, party polarization cuts against bipartisan embraces of pro-Congress views of the law and cuts in favor of Democrats and Republicans advancing competing views of congressional authority. Finally, Congress makes use of institutional structures that accentuate lawmaker disinterest in legal questions and treat the courts as the last word in legal disputes. The committee system, the Offices of Legislative Counsel, the Congressional Research Service, and the offices of House and Senate Counsel all contribute to Congress’s acceptance of judicial supremacy.

Keywords: Congress, Supreme Court, polarization, judicial supremacy