Have U.S. Courts Overreached?

Louis Fisher is a political scientist and author of "American Constitutional Law" (McGraw-Hill)

Have the federal courts overstepped their authority? Many believe they have, and nowhere is this sentiment stronger than in California. The furor against the federal judiciary was re-energized in the state on Dec. 23, 1996, when U.S. District Judge Thelton Henderson issued a preliminary injunction blocking implementation of Proposition 209, which bars “preferential treatment” on the basis of race or sex. Judge Henderson held that the initiative likely violates the Constitution’s equal-protection clause.

Proposition 187, which denies government services to illegal immigrants in California, passed by a wider margin than did 209. Yet, the initiative is similarly bottled up in federal court, a fate that has outraged many of its supporters.

Other federal-court rulings have checked popular movements expressed through congressional statutes and state initiatives. Newt Gingrich (R-Ga.), in his Jan. 7 acceptance speech to be House speaker, said that he had asked Henry J. Hyde (R-Ill.), chairman of the House Judiciary Committee, “to look at the issue of judicial activism. He has agreed to hold hearings looking at that issue.”

Popular frustration with court rulings has a long history. A number of amendments to the Constitution were direct efforts to reverse U.S. Supreme Court decisions. The 11th Amendment responded to a 1793 ruling that said states could be sued in federal court by a plaintiff from another state. The lower house of the Georgia legislature adopted the modest proposal that any federal marshal attempting to enforce that ruling would be guilty of a felony and hanged until death “without benefit of the clergy.” To protect states from a flood of costly citizen suits, Congress quickly passed the 11th Amendment and the states ratified it.


The 14th Amendment nullified the court’s 1857 decision in the Dred Scott case, which held that blacks were not citizens protected under the Constitution and that Congress could not prohibit slavery in the territories. The 16th Amendment, ratified in 1913, overruled an 1895 ruling that had struck down a federal income tax. The 26th Amendment was ratified in 1971 to overturn a 1970 decision that had voided a congressional effort to lower the minimum voting age in state elections to 18.

Other constitutional amendments, driven by seemingly irresistible political forces to check the courts, have fallen by the wayside. For example, Congress made a concerted effort in 1964 to amend the Constitution to overturn Supreme Court decisions in reapportionment and school-prayer cases. Because of delays by House committees and filibusters in the Senate, these efforts proved fruitless. Even when Congress reacts against a court decision by clearing an amendment for ratification by the states, the hurdles are immense. Both houses of Congress passed the Equal Rights Amendment, but it was never ratified, even after the deadline for its approval was extended.

During recent decades, Congress has been under strong pressure to withdraw the Supreme Court’s jurisdiction to hear appeals in cases of abortion, school busing, school prayer and other issues on the conservatives’ “social agenda.” This strategy is based on language in Article III of the Constitution: “The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.” The exceptions clause, it is argued, gives Congress plenary power to determine the court’s appellate jurisdiction.

Although this approach seems grounded in constitutional language, the exceptions clause must be read in concert with other provisions in the Constitution. An aggressive use of the clause would make an exception the rule and deny citizens access to the Supreme Court to vindicate constitutional rights. Stripping the court of jurisdiction to hear certain issues would vest ultimate judicial authority in the lower federal and state courts, producing contradictory and conflicting legal doctrines.


Some early decisions by the Supreme Court recognized the power of Congress to make exceptions and to regulate the court’s appellate jurisdiction. Since that time, there have been conflicting cases that both limit and legitimate congressional power under the exceptions clause. In 1922, the court said that, for district and appellate courts, Congress “may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution.” Precisely what those boundaries are it never said, which is probably prudent. Neither Congress nor the courts want a head-on collision.

More radical proposals would prevent even the lower federal courts from ruling on specific social issues. To deny these courts jurisdiction to hear claims arising under the Constitution would upset the system of checks and balances and alter the balance of power between the national government and the states. In 1982, the chief justices of the highest state courts issued a unanimous resolution expressing “serious concerns” about bills introduced in Congress to give the states sole authority to decide certain social issues. The chief justices pointed out that this kind of legislation would produce unintended and ironic results. Instead of overturning Supreme Court decisions, they would be “cast in stone” when state judges continued to honor their oaths to obey the federal Constitution and to give full force (pursuant to the Constitution’s supremacy clause) to Supreme Court precedents. The practical effect would be to place a body of legal doctrine outside the reach of federal courts or state courts either to alter or overrule.

Less ambitious remedies are available. In 1995, the House passed legislation to require a three-judge court for certain injunctions. Introduced by Rep. Sonny Bono (R-Calif.), the purpose is to prevent a single federal judge from issuing a temporary injunction to stop state referenda from taking effect. The basic issue: Should a district judge be able, single-handedly, to overturn the expressed will of the people? As Hyde noted during debate: “I cannot imagine anything more startling than to learn that a referendum or an initiative, in which 5 million people have participated, has been set for naught by one judge who, as we all know, being people in the real world, judges can be whimsical, judges are not always correct, and one judge who decides against 5 million people, or a large percentage thereof, is really an anomaly.” The bill passed the House, 266-159, but no action was taken by the Senate. The issue is expected to be revived this Congress.

Requiring a three-judge federal panel to determine injunctions in cases of statewide voter referenda is one way to remove the appearance of arbitrary judicial action. The objection to three-judge courts is not the authority of Congress to provide for them, but rather the administrative burden it places on the federal judiciary. Three judges do what might be done by one. Although Congress, over the years, has cut the jurisdiction of three-judge courts substantially, it can add to that jurisdiction when it likes. The Judicial Conference, the top policy-making body of the federal judiciary, concedes: “Ultimately, it remains for Congress to determine what types of cases should be determined by how many judges.”

Other remedies are available to check an activist judiciary. When courts render constitutional interpretations that the general public finds unacceptable and unconvincing, it is usually only a matter of time before the political process prevails. Through changes in the composition of courts or adjustments in the attitudes of judges who continue to sit, a determined majority in Congress or in the country as a whole is likely to have its way.

The reception to the Supreme Court’s ruling in Roe v. Wade (1973), recognizing a constitutional right for women to have abortions, was hostile from all quarters, liberal and conservative. The trimester concept looked more like the handiwork of a legislature than a court, and the notion of fetus “viability” could not provide a stable benchmark. Viability changed with advances made in medical technology. As Justice Sandra Day O’Connor noted in 1983, the Roe framework “is clearly on a collision course with itself.” After gradually shifting many of the issues of abortion to state legislatures and state courts, the Supreme Court finally jettisoned the trimester framework in 1992.

Many other examples of judicial backpedaling can be offered. There is no justification for deferring automatically to the judiciary because of its technical skills and political independence. Each decision by a court is subject to scrutiny and rejection by private citizens and public officials. What is “final” at one stage of judicial development may be reopened at some later date, leading to revisions, fresh interpretations and reversals of court doctrines. Through this process of interaction among the branches at the national level, and between the national government and the states, political institutions are able to expose weaknesses in judicial reasoning, hold excesses in check and gradually forge a consensus on constitutional values.