amendment process has been used on numerous occasions to overrule Supreme Court opinions.[167]
Nonetheless, Congress may be able to assert greater authority to engage in independent constitutional interpretation or to limit the reach of judicial opinions, short of enacting a system of legislative overrides.[168] As previously noted, numerous scholars have long contended that Article III never expressly states that the Supreme Court is the final or sole arbiter of statutes’ constitutionality.[169] Under this view, although specific Court orders must be obeyed, Congress and the President can continue to enforce the Constitution as they see fit, as long as they are not in defiance of a particular order. By way of example, Congress might make it a crime to burn the flag; the Court might hold that such a law is unconstitutional; Congress does nothing wrong by enacting the statute again and saying it does not agree with the Court’s interpretation, particularly if it includes new legislative findings. But if someone is prosecuted under the new law, and the Court maintains the view that the law is unconstitutional and enjoins the prosecution, the Court’s orders in that case must be followed.
According to this understanding of judicial review, Congress could enact a statute that affirms congressional authority to reenact a statute after a negative Court ruling; Congress could also establish procedures for such reenactment, consistent with bicameralism and presentment requirements. In addition, Congress could attempt to establish a general rule regarding what weight stare decisis ought to carry. The argument would be that determining the prospective precedential effect of opinions is within Congress’s “necessary and proper” power to regulate the operations of the federal courts, similar to its power to provide rules of evidence and procedure.[170] Others, however, have argued that determining the significance of stare decisis in constitutional cases is an inherent aspect of the judicial power to interpret the Constitution.[171] In any case, there is widespread agreement that Congress could not prospectively or retroactively deny the reach of a court order to the parties in a particular case.[172]
Apart from possible constitutional difficulties, Congress’s assertion of authority to limit the precedential effects of prior Court decisions might raise arbitrariness and unfairness concerns about giving the parties to a particular case the benefit (or burden) of a rule announced by the Court, while denying the same benefit (or burden) to others similarly situated.[173] In other words, the government would remain free to bring prosecutions against individuals who have violated a statute that the Court has declared unconstitutional in another case, leaving it to each individual defendant to raise the constitutional objection anew. Such concerns would be less pressing with a legislative override system achieved by constitutional
