The debate over Sonia Sotomayor's confirmation to the U.S. Supreme Court took place against a backdrop of tension between the Democratic Congress and Sotomayor's new colleagues.
Since January, Democratic lawmakers have pushed legislation that would reverse the effects of several recent high-profile decisions, many of them driven by the Court's five-member conservative majority. The Democrats want to allow state tort lawsuits over medical devices, restore a per se ban on vertical price-fixing, lower the standard for pleadings in civil suits and allow suits against aiders and abettors of securities fraud, to name only a few proposals.
The bills have little in common except that they would all override the Supreme Court's interpretations of law. Each bill is an expression of liberals' frustration with the direction of the Roberts Court -- and their hopes for Sotomayor.
"For all the talk about judicial modesty and judicial restraint from the nominees of a Republican president at their confirmation hearings, we've seen a Supreme Court these last four years that's been anything but modest and restrained," said Sen. Patrick Leahy, D-Vt., in a speech supporting Sotomayor. Leahy, the chairman of the Senate Judiciary Committee, denounced recent decisions involving employment discrimination and voting rights statutes that he said ran roughshod over Congress' intent.
Now, even as they celebrate the confirmation of someone they hope will be a new ally on the Court, Leahy and other Democrats have their best chance in at least 15 years to push back against the justices. Veteran senators such as Edward Kennedy, D-Mass., and Arlen Specter, D-Pa., have thrown their weight behind congressional overrides, and at least one has become law this year. That legislation gives employees more time to file complaints about unequal pay, reversing the 5-4 opinion in Ledbetter v. Goodyear Tire & Rubber Co. (2007).
"The Democrats have bigger majorities and there's a new man in the White House, so there's a chance to revise statutes that there was not a chance to revise last year," said Allison Zieve, litigation director at the consumer group Public Citizen. "There's some pent-up demand," she added.
Among the top priorities is a reversal of Riegel v. Medtronic (2008), which Zieve argued on behalf of a man injured when his catheter burst during an angioplasty. In an 8-1 ruling, the justices held that the federal Medical Device Amendments of 1976 pre-empt common law claims in state court against the makers of medical devices. The House and Senate have each held hearings this year, and a bill to allow such claims is a priority for the plaintiffs' bar.
In fact, many of the proposed overrides would benefit plaintiffs -- a fact not lost on the business community.
"While the plaintiffs' trial bar likes to tout the indispensability of the legal system in delivering 'justice,' it is quick to run to Congress to overturn court decisions that do not come out in its favor," said Lisa Rickard, president of the U.S. Chamber of Commerce's Institute for Legal Reform, in a statement. Rickard accused plaintiffs' lawyers of "waging a full-out assault on U.S. Supreme Court decisions that bring fairness and balance to America's bloated lawsuit system."
Still, lawmakers have a long way to go before matching the number of overrides in previous years. In one of the few comprehensive studies of the phenomenon, Yale Law School professor William Eskridge Jr. identified an average of 13 overrides per two-year Congress from 1975 through 1990. His study also found that Congress was more likely to reverse rulings in which the Court split 5-4 or 6-3, as well as decisions based primarily on the plain meaning or legislative history of the statute.
Lawmakers of both parties pursue overrides, though on different subjects. "The Republicans did a lot of the same thing on habeas corpus cases back in the 1990s. It's the same rhetoric," Eskridge said in an interview. "It's just a different political circumstance."
Other research adds a warning for anyone planning an override: Appellate courts, including the Supreme Court, can interpret around them. Judges sometimes construe the new laws narrowly, thwarting Congress' attempts to clarify its intent, wrote Jeb Barnes, a political scientist at the University of Southern California, in "Overruled?," his 2004 book.
And how will Sotomayor affect relations between the Court and Congress? Based on his reading of her opinions, Eskridge expects her, like Justice Stephen Breyer, to be more understanding of the complexities of the legislative process. "The big difference, I think, is that she will try to read the text in the light of the legislative expectations and the congressional purposes," Eskridge said.
