The Senate is slated to vote Wednesday on legislation that would codify Roe v. Wade, following news last week that the Supreme Court is poised to overturn the landmark 1973 decision that enshrined the right to abortion.
The Democratic-led bill, known as the Women’s Health Protection Act, is not expected to clear the closely divided Senate’s 60-vote threshold. Despite its long odds, the effort by lawmakers to directly rebuff a disfavored Supreme Court opinion has a rich tradition in American politics, although such “overrides” have become increasingly rare as partisan divisions have deepened.
“The popular understanding is that the Supreme Court is the primary institution protecting the rights of women and minorities. That is not always true,” said William Eskridge, a professor at Yale Law School. “Indeed, very often, when the Supreme Court rejects constitutional claims or statutory claims by women and minorities, it’s up to Congress to fix it, and Congress has frequently done exactly that.”
The Supreme Court last week confirmed the authenticity of the leaked draft opinion, which was published by Politico, but cautioned that justices’ votes and the opinion itself are subject to change before a final decision is published in coming weeks.
Here’s a look at five big historical instances where Congress has superseded a decision by the Supreme Court.
Dred Scott and the Reconstruction Amendments
The most shameful decision in the Supreme Court’s history was the 1857 ruling in Dred Scott v. Sanford. The 7-2 opinion held that slaves were property and that African Americans — whether enslaved or free — could not be U.S. citizens.
The decision, authored by Justice Roger Taney, also invalidated the Missouri Compromise, which was designed to strike a balance between free and slave-holding states. As a consequence of Taney’s ruling, slavery was permitted across the country.
Following the Civil War, the Scott decision was overturned by the 13th and 14th Amendments to the Constitution, which abolished slavery and established that all people born or naturalized in the U.S. are citizens.
Passed by Congress in January 1865 and ratified in December of that year, the 13th Amendment reads in part: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Free exercise of religion
Although Supreme Court Justice Antonin Scalia is regarded as a conservative icon, his 1990 majority opinion in Employment Division v. Smith did not age well by many conservatives’ estimations.
That 6-3 ruling gave a relatively narrow reading to the Constitution’s Free Exercise Clause and held that this provision could not be used to invalidate laws that are considered neutral and generally applicable.
Congress in 1993 responded with the Religious Freedom Restoration Act (RFRA), using its legislative findings in part to blast the court’s decision in Employment Division v. Smith. RFRA restored a higher level of scrutiny to laws that burden religious exercise.
In yet another back-and-forth between federal branches, the Supreme Court in City of Boerne v. Flores ruled in 1997 that RFRA was unconstitutional as applied to states.
Lilly Ledbetter Fair Pay Act
A sharply divided Supreme Court in 2007 ruled against Lilly Ledbetter in a dispute with her employer, Goodyear Tire and Rubber Company. Ledbetter worked at the company’s Gadsden, Ala., plant for nearly two decades when she discovered she had been paid significantly less than her male counterparts for the same job.
Ledbetter brought a sex-based pay discrimination suit under Title VII of the Civil Rights Act of 1964. The 5-4 majority opinion, authored by Justice Samuel Alito, held that Ledbetter’s lawsuit was time-barred because the alleged discrimination occurred too far in the past from the time that she brought her complaint.
Justice Ruth Bader Ginsburg wrote a fiery dissent that closed with an invitation to Congress “to correct this Court’s parsimonious reading of Title VII.”
In 2009, President Obama signed his first official legislation with the Lilly Ledbetter Fair Pay Act, which effectively overturned the Supreme Court’s decision by making it easier to file pay discrimination suits. Ginsburg kept a framed copy of the bill, signed by Obama, in her chambers.
A previous 1991 amendment to Title VII had an even more sweeping effect, overruling as many as a dozen Supreme Court decisions, according to Eskridge of Yale Law School.
A bare majority of Supreme Court justices in 2000 ruled that the Food and Drug Administration (FDA) lacked the authority to regulate tobacco. The Clinton-era case arose when the FDA in 1996 enacted regulations that aimed to curb smoking by kids and adolescents.
The court, in a 5-4 ruling, held that the FDA erred by defining nicotine as a drug under the Food, Drug, and Cosmetic Act.
Nine years later, Congress responded by passing the bipartisan Family Smoking Prevention and Tobacco Control Act, which for the first time empowered the federal government to regulate cigarettes and other tobacco products.
Around the turn of the millennium, the Supreme Court issued a series of rulings that gave a narrow reading to the Americans with Disabilities Act (ADA), eventually drawing a direct rebuke from lawmakers.
In one such case, Toyota Manufacturing, Kentucky v. Williams, a unanimous court in 2002 overruled a lower court for applying too relaxed a standard for reviewing a disability claim by an employee with carpal tunnel syndrome.
When Congress amended the ADA in 2008 to “restore the intent and protections” of the law, its legislative findings explicitly called out two Supreme Court rulings as erroneous.
“The holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams further narrowed the broad scope of protection intended to be afforded by the ADA,” the bill’s text reads.