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Hasen, in a soon-to-be-published law review article, examines how political polarization in Congress has changed the traditional back-and-forth between the legislative and judicial branches and notes how the balance of power has tipped in favor of the court.
“There’s a broader story to be told here,” Hasen said in an interview.
The Supreme Court considers and interprets federal laws passed by Congress. In the past, if the justices found a statute to be unconstitutional, lawmakers could restructure it or pursue a constitutional amendment. If Congress did not agree with the court’s interpretation of a law, it could pass a new version. But that process has ground to a halt.
Hasen notes in his article that from 1975 to 1990, there were an average of 12 congressional overrides of Supreme Court decisions during each two-year Congressional session. From 1991 to 2000, the frequency dropped to 5.8 overrides. From 2001 to 2012, only 2.8 overrides occurred per Congress.
“In a highly politicized atmosphere and with Senate rules usually requiring sixty votes to change the status quo, the court’s word on the meaning of statutes is now final almost as often as its word on constitutional interpretation,” Hasen writes.
That has not been lost on the justices.
During oral arguments on the constitutionality of the 2010 health care law, Scalia acknowledged that the court’s ruling would likely be the final word on the matter. The justices had to decide whether the individual mandate that required people to purchase health insurance could be “severed” from other parts of the law that weren’t being challenged.
“You can’t repeal the rest of the act because you’re not going to get 60 votes in the Senate to repeal the rest ... the rest of the act is going to be the law,” Scalia said.