Amidst the backdrop of a federal investigation into the actions of President Donald Trump, a previously unexplored legal question has emerged on a topic that forms the foundation of legal practice: Can a succeeding government official revoke a predecessor’s claim of the attorney-client privilege? Although the question is novel, its role within the government context is well established—having been asserted by Presidents Richard Nixon and Bill Clinton in their respective administrations. The context of current events, however, underscores the need to further define the operation of a privilege that is once again being relied upon by a president under investigation.
This Article considers the likely effects of continued political polarization on the relative power of Congress and the Supreme Court. Polarization is already leading to an increase in the power of the Court against Congress, whether or not the Justices affirmatively seek that additional power. The governing model of congressional-Supreme Court relations is that the branches are in dialogue on statutory interpretation: Congress writes federal statutes, the Court interprets them, and Congress has the power to overrule the Court’s interpretations. The Court’s interpretive rules are premised upon this dialogic model, such as the rule that Supreme Court statutory interpretation precedents are subject to “super strong” stare decisis protection because Congress can always correct an errant court interpretation. Legislation scholars also write as though congressional overriding remains common.
In fact, in the last two decades the rate of congressional overriding of Supreme Court statutory decisions has plummeted dramatically, from an average of twelve overrides of Supreme Court cases in each two-year congressional term during the 1975-1990 period, to an average of 5.8 overrides for each term from 1991-2000, and to a mere 2.8 average number of overrides for each term from 2001-2012. Although some of the decline seems attributable to the lower volume of Supreme Court statutory interpretation decisions, the decline in overrides greatly outpaces this decline in cases. Moreover, the decline does not appear to be driven by a decline in the amount of overall legislation. Instead, partisanship seems to have strongly diminished the opportunities for bipartisan overrides of Supreme Court cases, in which Democrats and Republicans come together to reverse the Supreme Court.
In its place we see a new, but rarer, phenomenon, partisan overriding, which appears to require conditions of near-unified control of both branches of Congress and the presidency. Two recent examples are (1) the Military Commissions Act of 2006, in which Republicans overturned the Court’s statutory interpretation decision in Hamdan v. Rumsfeld on the habeas corpus rights of enemy combatants, and (2) the Lilly Ledbetter Fair Pay Act of 2009, in which Democrats overturned the Court’s statutory interpretation decision in Ledbetter v. Goodyear Tire & Rubber Co. on how to measure the statute of limitations period in certain employment discrimination lawsuits. In a highly polarized 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.