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to end their national division by accepting" "the Court's interpretation of the Constitution."

Decisions like Casey and Boerne are rare, however. Backed into a corner by elected government challenges to judicial decisionmaking, the Justices claimed authority to settle transcendent values.1 For the most part, the Justices adhere to a philosophy that is much more modest, circumspect, and nuanced. Anthony Kennedy (the author of Boerne), for example, has testified before Congress that lawmakers "would be fulfilling [their] duty" by limiting the effects of Supreme Court decisions that they think are "wrong under the Constitution." 2

The historical record provides overwhelming evidence that other parts of government challenge the Court's constitutional reasoning and that the Court is influenced by these challenges as well as the broader social currents which surround it. The Court may be the ultimate interpreter in a particular case, but not always the larger issue of what the case is a part. Congress, the White House, government agencies, interest groups, the general public and the states all play critical roles in shaping constitutional values. As noted by Ruth Bader Ginsburg a year before her appointment to the Supreme Court, judges "play an interdependent part in our democracy. They do not alone shape legal doctrine. . . they participate in a dialogue with other organs of government, and with the people as well."3

CONGRESS AND THE CONSTITUTION

Congress participates in constitutional decisionmaking at all phases of the lawmaking process, from the enactment of legislation and approval of constitutional amendments to the oversight of government departments and agencies. In recent decades, Congress also has participated in litigation both in its own name and through briefs filed by individual members. Through the Senate's power to confirm judicial nominees, moreover, Congress plays an integral role in defining the composition of the federal judiciary.

Elected government's most direct link to judicial decisionmaking is the overtly political process of selecting and approving federal judges. Accordingly, battles over Supreme Court nominations reveal that the president and Senate both recognize that the best way to shape outputs (Court rulings) is to control inputs (i.e., to control who sits on the Court). In particular, members of the Senate Judiciary Committee "have learned to shape the constitutional dialogue in the confirmation hearings to make clear to nominees that a willingness to profess belief in some threshold constitutional values is a prerequisite for the job."4 Beginning with the 1981 nomination of Sandra Day O'Connor, "these threshold values have included a commitment to the existence of... the right to privacy and respect for stare decisis."5

Congressional influence over constitutional interpretation through the confirmation of judges is only the tip of an iceberg. Before legislation is enacted, Congress often undertakes a constitutional review of the measure. This review may occur in a number of different ways. First, committee and subcommittee staff members as well as House or Senate members themselves may assess the bill's constitutionality. Second, a number of congressional offices may be called upon to assist in this review. The Congressional Research Service, the offices of legislative counsel to the House and to the Senate, and the General Accounting Office all can assist in reviewing constitutional questions. Third, through formalized legislative hearings and informal requests, constitutional scholars, Justice Department officials and other government officials, and interest groups share their views of a measure's constitutionality with members and their staffs.

Consider, for example, the pivotal role played by the House Judiciary Committee in the Supreme Court's approval of the 1964 Civil Rights Act's prohibition of discrimination by restaurants, hotels, and other public accommodations. In the wake of hearings raising grave doubts about whether Congress had the authority to ground this public accommodations provision in the Fourteenth Amendment's equal protection guarantee, Congress invoked its commerce power as an alternative basis for this provision. Because the statute was framed this way, the Supreme Court was

1 For a detailing of the defensive nature of Court invocations of judicial supremacy, see Neal Devins & Louis Fisher, Judicial Exclusivity and Political Instability, 84 Va. L. Rev. (forthcoming, Feb 1998). I have attached a copy of this article to my testimony. 2 Nomination of Anthony M. Kennedy to be Associate Justice of the United States Supreme Court of the United States: Hearings Before the Senate Judiciary Comm., 100th Cong., 1st. Sess. 222-23 (1987).

3 Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1198 (1992).

Stephen J. Wermeil, Confirming the Constitution: The Role of the Senate Judiciary Committee, 56 Law & Contemp. Probs. 121, 122 (Autumn 1993).

5 Id.

able to uphold the measure on commerce grounds without ever having to consider the Fourteenth Amendment issue. Had Congress relied exclusively on its authority to enforce the Fourteenth Amendment's equal protection guarantee, the case, of course, would not have been decided on commerce grounds and might well have come out the other way.

Aside from framing issues for judicial resolution, Congress and its members also participate in the litigation process. Sometimes the Supreme Court invites the House, the Senate, or individual members of Congress to present an amicus curiae (friend of the court) brief and participate in oral arguments. Amicus curiae briefs, most notably in abortion and separation-of-powers disputes, also have been filed at the initiative of the Senate, the House, and their individual members. For example, a coalition of more than two hundred members of Congress filed an amicus brief in Harris v. McRae, defending the right of Congress to fund or to refrain from funding abortions as it sees fit. Finally, Congress participates as a party to litigation when the Justice Department refuses to defend a statute's constitutionality. In cases involving the constitutionality of the bankruptcy court and the legislative veto, for example, Congress defended the constitutionality of its handiwork.

Once the Supreme Court decides a case, Congress may make use of a wide variety of powers to signal its approval or disapproval of the decision. When Congress agrees with the Court, it may affirmatively assist in the implementation of a Court decision. For example, in response to Southern resistance, Congress took bold steps to make Brown v. Board of Education a reality. In 1964 it prohibited segregated school systems from receiving federal aid (Title VI) and authorized the Department of justice to file desegregation lawsuits. More significant, the implementation of the Elementary and Secondary Education Act of 1965, coupled with the issuance and enforcement of Title VI guidelines, marked a significant shift in federal powers over state education systems. These federal efforts proved critical in ending dual school systems. More actual desegregation took place the year after these legislative programs took effect than in the decade following Brown.

Congress, moreover, may also enact legislation at the Court's behest. In 1978 the Court, while upholding the constitutionality of third-party searches of newspapers in Zurcher v. Stanford Daily, invited legislative efforts to establish "nonconstitutional protections against possible abuses of the search warrant procedure." Congress accepted this invitation. Concluding that "the search warrant procedure in itself does not sufficiently protect the press and other innocent parties" and that the Zurcher decision had "thrown into doubt" "a longstanding principle of constitutional jurisprudence," Congress prohibited such newspaper searches in 1980.6

WHEN CONGRESS AND THE COURT DISAGREE

Starting with the First Congress, Congress has proven itself willing to act in the face of contradictory Supreme Court precedent. During the debate in 1789 on the President's removal power, for example, James Madison saw no reason to defer to the judiciary on the constitutionality of what Congress was about to do. While acknowledging that "the exposition of the laws and Constitution devolves upon the Judiciary," he begged to know on what ground “any one department draws from the Constitution greater powers than another in making out the limits of the powers of the several departments.”7

In response to Dred Scott, Congress passed a bill prohibiting slavery in the territories.8 Disagreeing with the Court's 1918 ruling that the commerce power could not be used to regulate child labor, Congress two decades later again based child labor legislation on the Commerce Clause.9 Public accommodations protections_contained in the 1964 Civil Rights Act similarly followed in the wake of a Supreme Court decision rejecting such protections. 10 More recently, lawmakers have challenged Court rulings on abortion, busing, flag burning, religious freedom, voting rights, and the legislative veto.11

Congressional disagreement with the Court takes many forms. At one extreme, Congress simply disregards a Court decision it finds unworkable. Immigration and Naturalization Service v. Chadha, invalidating the legislative veto, is such a case. In the twelve years after Chadha, 1983-1995, well over three hundred legislative veto provisions were enacted into law. The reason for such widespread disobedience

6 Staggers Rail Act of 1980, 94 Stat. 1895 (1980).

71 Annals of Congress 500 (Joseph Gales ed., 1834).

8 Act of June 19, 1862, c.111, 12 Stat. 432.

9 Fair Labor Standard Act of 1938, 52 Stat. 1060.

10 Title II of the 1964 Civil Rights Act, 78 Stat. 241, 243.

11 See generally Louis Fisher & Neal Devins, Political Dynamics of Constitutional Law (2d ed. 1996).

of Chadha is that "[n]either Congress nor the executive branch wants the static model of government offered by the Court." 12

Congress may also seek to nullify Court rulings by amending the Constitution. While constitutional amendment proposals are almost always unsuccessful, these proposals nevertheless may drive judicial decisionmaking. For example, in response to the Court's failure to invalidate gender-based decisionmaking, Congress approved and sent to the states for ratification a proposed Equal Rights Amendment (ERA) prohibiting the abridgement of “equality of rights on account of sex." These efforts prompted the Court to reconsider its approach to gender decision-making, and in the early 1970s Supreme Court decision-making became "fully compatible with arguments made by leading mainstream ERA proponents in such documents as congressional committee reports and hearings records on the ERA, and in testimony in the Congressional Record by leading ERA sponsors." 13 Ironically, the ultimate defeat of the ERA is sometimes attributed to the Court's general adoption of the amendment's principles.

Another area where Congress has been successful is in countering Supreme Court decisionmaking that does not protect rights that Congress thinks should be protected. Two recent examples stand out. After the Supreme Court upheld, in Goldman v. Weinberger, an air force regulation forbidding an Orthodox Jew's wearing of a yarmulke indoors while on duty, Congress enacted legislation overturning this regulation. 14 More strikingly, Congress significantly expanded voting rights protections through its 1982 amendments to the Voting Rights Act. The bill was a direct outgrowth of the Supreme Court's decision in Mobile v. Bolden, in which the Court required proof of discriminatory intent as a basis for voting rights litigation. Concluding that the "intent test focuses on the wrong question and places an unacceptable burden upon plaintiffs in voting discrimination cases," 15 Congress cleared the way for impact-based proofs of discrimination.

Congress, finally, has sought to limit the reach of Court decisions that protect rights in ways that Congress thinks are inappropriate. Following Roe v. Wade, Congress revealed its hostility to expansive abortion rights through funding restrictions. Congress likewise made effective use of its power of the purse in limiting school busing.

City of Boerne v. Flores, invalidating legislative efforts to define the content of First Amendment religious liberty protections, does not call into question Congress's broad authority to limit the effect of Supreme Court decisions. 16 To begin with, Boerne says nothing about Congress's authority to control federal programs or its power to place conditions on the receipt of federal funds (including the denial of federal funding to disfavored activities). Moreover, while specifying that Congress's authority to enforce the Fourteenth Amendment is limited to "legislation which deters or remedies constitutional violations," the Court acknowledged that "the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern." Correspondingly, in recognizing that "Congress must have wide latitude in determining" whether corrective legislation is, in fact, remedial, Boerne acknowledged Congress's power to engage the Court in constitutional dialogues.

THE LAST WORD DEBATE REVISITED

Congressional practice as well as the design and text of the Constitution all suggest that the overriding value promoted by the framers was a system of checks and balances, with each branch asserting its own powers and protecting its own prerogatives. Furthermore, constitutional dialogues between the courts and elected government often result in more vibrant and durable constitutional interpretation. În particular, a final interpretive authority of the Constitution will make our most fundamental text stagnant and irrelevant, rather than preserve and honor it. Lou Fisher and I develop this point in a forthcoming article, Judicial Exclusivity and Political Instability, which I am attaching to this statement. In our view, the Constitution becomes more relevant and more stable when all branches and levels of government do battle with one another.

12 Louis Fisher, The Legislative Veto: Invalidated, It Survives, 56 Law & Contemp. Probs. 273, 292 (Autumn 1993).

13 Leslie Goldstein, The ERA and the U.S. Supreme Court, 1 Law and Political Studies 145 (1987). See also Jane Mansbridge, Why We Lost the ERA 47 (1989).

14 National Defense Authorization Act for Fiscal Years 1988 and 1989, 101 Stat. 1019, 1087 (1987).

15 S. Rep. No. 97-417 at 13 (1982).

16 For an elaboration of why I think Boerne is of limited reach, see Neal Devins, How Not to Challenge the Court, 39 Wm. & Mary L. Rev. (forthcoming 1998).

Courts and elected officials should both be activists in shaping governmental policy, in large measure, because judges and politicians sometimes react differently to social and political forces. Congress, for example, focuses its "energy mostly on the claims of large populous interests, or on the claims of the wealthy and the powerful, since that tends to be the best route to re-election." 17 Courts, in contrast, are less affected by these pressures, for judges possess life tenure. Accordingly, because special interest group pressures affect courts and elected officials in different ways, a government-wide decisionmaking process encourages a full-ranging consideration of the costs and benefits of different policy outcomes.

This politicization of constitutional discourse, while contributing to partisan value-laden constitutional interpretation, is better than the alternatives-legislative or judicial supremacy. Legislative supremacy, as Marbury recognized, would blur the line separating the Constitution from ordinary laws. Moreover, subject to the pressures of reelection, "legislatures are too likely to get caught up in the passions of the moment, be they flag burning, alleged communists in the State Department, to the need to really sock it to various types of criminal defendants." 1 "18 For progressives and conservatives alike, lawmakers' propensity to do that which is politically expedient makes legislative supremacy unpalatable.

Judicial exclusivity, like legislative supremacy, creates more problems than it solves. "When technologies are changing rapidly, when facts or values are unclear and when democracy is in a state of moral flux, courts [with limited factfinding capacity and inability to respond quickly to changing circumstances] should recognize that they may not have the best or final answers." 19 Moreover, lacking the powers of purse and sword, as Casey recognized, the Court's authority is necessarily tied to "the people's acceptance for the Judiciary." The Court is well aware of this: for example, Justice Owen Roberts, whose alleged "switch in time" saved the Lochner Court from Roosevelt's Court-packing plan, acknowledged that "[l]ooking back, it is difficult to see how the Court could have resisted the popular urge for uniform standards throughout the country." 20

To be sure, those who believe that Congress is not "ideologically committed or institutionally suited to search for the meaning of constitutional values" 21 may question the practicality of this dynamic decisionmaking model. Populist constitutional interpretation, however, serves as an important foil for the Court. In so doing, elected government interpretation makes the Constitution more relevant and more durable. The saga of abortion rights underscores the appropriately interactive nature of constitutional decisionmaking.22 Roe v. Wade served as a critical trigger to judicial recognition of abortion rights, overcoming politically potent_pro-life interests that have always stood in the way of populist abortion reform. Roe also prompted the elected branches of government into action. From 1973 to 1989, 306 abortion-restricting measures were passed by forty-eight states. In 1992, after two decades of elected government resistance as well as the appointment of new Supreme Court Justices, the Court responded to these pressures and returned much of the abortion issue to the states. Repudiating Roe's stringent trimester test in favor of a more deferential "undue burden" standard, Planned Parenthood v. Casey, while reaffirming "the central holding of Roe,” signalled the Court's increasing willingness to uphold state regulation of abortion.

Without question, to a pro-choice advocate, Casey's balance sells out important interests of women, and, to a pro-lifer, it permits moral outrages to continue. But there is no realistic alternative to Casey's balancing act. The political upheaval that followed (and still follows) Roe reveals the unworkability of a strident pro-choice jurisprudence. But a jurisprudence allowing the prohibition of abortion is equally unworkable. In the years before Roe, when nontheraputic abortions were prohibited in nearly every state, abortions were both less safe and almost as common as they are today. Ultimately, abortion is too divisive for either pro-choice or pro-life absolutism to rule the day. Absent the constitutional dialogue that followed Roe, however, the politically unworkable trimester standard would have remained in place.

17 Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U.L. Rev. 269, 273 (1993).

18 Id.

19 Cass Sunstein, Supreme Caution: Once Again the High Court Takes Only Small Steps, Wash. Post, July 6, 1997 at C-1.

20 Owen J. Roberts, The Court and the Constitution 61 (1951).

21 Owen Fiss, The Forms of Justice, 93 Harv. L.Rev. 1, 10 (1979).

22 For a detailed treatment of this point, see Neal Devins, Shaping Constitutional Values: Elected Government, the Supreme Court, and the Abortion Debate (1996).

CONCLUSION

Congress must not shy away from its responsibility to interpret the Constitution and, when necessary, challenge the Court. Delegations of constitutional responsibility to the courts through expedited review provisions or suggestions that Court interpretations are definitive both weaken the Congress and the Constitution.23 Our system of government, as Justice Ginsburg rightly observed at their confirmation hearing, is one where courts "do not guard constitutional rights alone. Courts share that responsibility with Congress, the President, the states, and the people." 24

This process of "ambition counteracting ambition" is central to our system of divided government. By empowering "we the people" through their elected representatives, it also make the Constitution more vital, more durable, and more democratic. Mr. CANADY. Okay; thank you, Professor Devins. Professor Kinkopf.

STATEMENT OF NEIL KINKOPF, VISITING ASSISTANT PROFESSOR OF LAW, CASE WESTERN RESERVE UNIVERSITY LAW SCHOOL

Mr. KINKOPF. Thank you, Mr. Chairman, members of the committee. It's a real honor to appear before you today and a particular privilege to appear on such a distinguished panel.

The relationship between Congress and the Court with respect to constitutional interpretation calls to mind Justice Jackson's observation that the Constitution "enjoins upon the branches of the Federal Government separateness but interdependence, autonomy but reciprocity." We've heard a lot of discussion this morning about the separateness and the independence of the roles of the branches in interpreting the Constitution.

I would like to focus on the interdependence and reciprocity. In particular, I would like to focus on the deference that the Court owes to Congress's constitutional interpretations contained in legislation and in the legislative record that supports that legislation. There is no broadly-applicable rule to determine whether, or even to what extent, the Court owes deference to Congress. It depends on the context and content of particular legislation and the legislative record. For example, the Court will extend differing levels of deference depending on whether legislation draws classifications based on race, based on gender, or based on, say, age. I want to discuss the deference that the Court owes to congressional constitutional interpretation in the context of separation of powers and the structure of the Federal Government.

I think first it would be useful to recall the two fundamental purposes underlying the structure of the Federal Government. First, because the framers feared that large concentrations of unchecked power are subject almost inevitably to abuse, the Constitution separates the Government into three branches and makes each branch the primary guardian of its own constitutional role, arming it constitutionally with checking powers on the others.

Second, the Constitution sought to create a viable and effective national Government, particularly in light of its experience under

23 For a critical examination of Congress's employment of an expedited judicial review provision in 1996 item veto legislation, see Neal Devins and Michael A. Fitts, The Triumph of Timing: Raines v. Byrd and the Modern Supreme Court's Attempt to Control Constitutional Confrontations, 86 Geo. L.J. 351 (1997).

24 Nomination of Ruth Bader Ginsburg to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 103d Cong., 1st Sess. 50 (1993).

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