Vol. 14 No. 6 (June 2004), pp.498-500
OVERRULED? LEGISLATIVE OVERRIDES, PLURALISM, AND CONTEMPORARY COURT-CONGRESS RELATIONS, by Jeb Barnes. Stanford: Stanford University Press, 2004. 232pp. Cloth $50.00. ISBN: 0-8047-4883-7.
Reviewed by Georg Vanberg, Department of Political Science, University of North Carolina at Chapel Hill. E-mail: firstname.lastname@example.org
Although popular perception may have it that courts – and especially the Supreme Court – have the “last word” on the meaning of Congressional statutes, Congress regularly acts to change or to clarify the legal framework in response to judicial decisions when such decisions have either produced outcomes that are not favored by a congressional majority or that have led to incompatible judicial interpretations and hence legal uncertainty. Over the last decade, a considerable literature on the phenomenon of “overrides” has emerged in political science. To date, the main focus of this literature has been to investigate at a theoretical level (often in formal models), the extent to which the possibility of Congressional override constrains judicial decision-making. In OVERRULED? Jeb Barnes provides a rich empirical analysis of the override process and its consequences. Such an investigation is, of course, central to many of the issues that have been raised in the theoretical literature, but it has received surprisingly little systematic attention from scholars. In taking a tremendous step towards filling this void, Barnes has thus made a significant contribution in moving the literature on Congressional-judicial relations towards a more nuanced and empirically-grounded understanding.
The main concern of the book is to provide a detailed empirical analysis of the override process and its consequences that answers the following questions: When Congress chooses to respond to statutory interpretation decisions by the courts, is the legislative process open or closed to the participation of varied interests? How comprehensive are override bills that are passed in directing courts towards particular outcomes? Do overrides successfully challenge judicial interpretations? Do they lead to uniform judicial application of the override statute and engender judicial consensus, or does conflict and judicial dissensus persist even after an override? To answer these questions, Barnes conducts a careful study of 100 Congressional override bills that provides a detailed, and sometimes surprising, picture.
Because the concern of the book is not to develop a theoretical argument, Barnes organizes his empirical discussion around three competing perspectives on Congressional overrides that he distills from the contemporary literature. Not all readers will be persuaded by Barnes’ summary of the theoretical debate as expressed in these three “ideal type” perspectives. But they serve a reasonably useful purpose in guiding the empirical analysis. “Pluralist” scholars argue that fragmentation of power and multiple points of access should engender an [*499] open policymaking process in which a wide variety of interests participates in crafting comprehensive override legislation that removes legal uncertainties. In contrast, “capture” theorists (whom Barnes identifies with public choice approaches) stress that the policymaking process favors well-organized groups that are able to “capture” the policymaking process in pursuit of narrow interests. In consequence, capture theorists argue that well-organized interest groups can make use of strategic litigation and targeted Congressional intervention against unfavorable judicial decisions to pursue their agenda. Override legislation will remove legal uncertainties and should generate judicial consensus, but it will not reflect broad participation by all affected interests. A final perspective that Barnes offers is “hyperpluralism.” Hyperpluralists, according to Barnes, stress the incentives that the American system creates for lawmakers to pass vague statutes, allowing them to claim credit while delegating difficult or unpleasant decisions to the courts or other agencies. As a result, the override process is unlikely to generate legal certainty as lawmakers “pass the buck” to the courts instead of resolving legal uncertainties through highly specific statutes.
Having laid out these perspectives, Barnes turns to the second part of the book in order to assess how well the empirics of the override process fit each of these perspectives. It is here that the book makes its major contribution. Barnes carefully analyzes a random sample of 100 Congressional override bills passed between 1974 and 1990. For each bill, he assesses the level of judicial dissensus (measured as cases involving inter-circuit splits, reversals, or dissents on the application of a law) under the original statute as well as under the override bill. He also codes the openness of the legislative process surrounding override bills (measured by the diversity of groups that testified before Congress) as well as the comprehensiveness of the override bill (measured by explicit delegation to the courts in the override bill or the presence of vague standards that provide considerable room for judicial discretion.).
Three central conclusions emerge from this analysis. The first is that the data suggest that most override processes are “pluralistic,” involving a large and diverse number of interests that are represented in the override process, rather than the narrow set of interests expected by Barnes’ “capture theorists.” Second, contrary to the expectations of hyperpluralists, Congress predominantly passes “prescriptive” overrides in an attempt to provide a comprehensive solution to a legal question rather than partial overrides that delegate central aspects of an issue to the courts. Finally, Barnes finds that overrides, especially if they are prescriptive, are typically successful in raising the level of judicial consensus following an override, but they do not eliminate dissensus completely.
In the final empirical chapter, Barnes sketches some potential explanations for these diverse outcomes. Thus, he hypothesizes (among others) about the impact of the type of congressional committee involved in an override process, the stake of the federal government in an override bill, judicial partisanship, the saliency of an issue, and the presence of divided government. [*500] Although intriguing in some instances, this chapter is arguably the weakest in the book. Without the development of a more comprehensive theoretical framework, it is difficult to discern how the various potential influences fit into a more general explanation. Moreover, while the “classification” approach that Barnes employs works reasonably well in the careful identification of outcomes that occupied the previous chapters, it runs into limitations when the emphasis shifts to an explanatory endeavor. Most obviously, all analysis in the chapter is done through bivariate cross-tabulations. As a result, it is difficult to assess to what extent the findings (and non-findings) would survive in a multivariate framework that can control for the various complex influences and their interactions that Barnes (and others) have outlined.
Needless to say, open questions that remain should not detract from the important contribution of this book. As Barnes appropriately cautions the reader, the issues he attempts to tackle are rich and complex, and no single book could provide a comprehensive analysis of the override process. In providing us with a careful and detailed picture of the realities, Barnes has taken an important step in the “modeling dialogue” among theorists and empiricists that will hopefully push us towards a more sophisticated and nuanced understanding of congressional-judicial relations.
Copyright 2004 by the author, Georg Vanberg.