Document Type


Publication Date


Publication Citation

90 Texas Law Review 859 (2012)


Statutory overrides — that is, amendments to supersede a judicial interpretation of a statute — are the primary mechanism by which Congress signals disagreement with court interpretations; they are essential to protect the separation of powers and the promise of legislative supremacy. But in Gross v. FBL Financial Services, the Supreme Court held that Congress’s override of a judicial interpretation of Title VII did not control the interpretation of identical language in the Age Discrimination in Employment Act, and further that Congress’s “neglecting” to amend the ADEA when it amended Title VII was a clear signal that Congress intended the language in the ADEA to be interpreted differently. The Court instead embraced an interpretation that had been rejected by both Congress and a prior majority of the Supreme Court. Lower courts, following typical rules of statutory interpretation, have quickly applied Gross to reinterpret the causation standard under numerous other employment laws. The Court’s reasoning in Gross improperly cabins the effects of congressional overrides and dramatically aggrandizes the judicial role; it also unmoors the Supreme Court from the rules of precedent that typically constrain judicial interpretation. Gross and its aftermath illustrate what I call the “hydra problem.” Congress tried, through enacting an override, to supersede a judicial interpretation with which it disagreed. The Court interpreted this action — the metaphorical severing of a head — to permit the rapid growth of new “heads” in numerous other statutes. In Gross, the Court suggested that Congress bears the burden of avoiding the hydra problem by separately amending all statutes to which a disfavored interpretation might be applied. This is an unreasonable expectation. Courts should instead adopt a rebuttable presumption that enactment of an override calls for the (re)interpretation of the preexisting language in the statute amended, and analogous provisions in related statutes, consistent with the meaning endorsed by Congress, so long as the preexisting text can reasonably bear that meaning. This approach would better permit overrides to play their intended role as a check on judicial lawmaking. It would also further independent values of fairness, predictability, and efficiency in the development of statutory law.