I was viewing this video, which is the Crash Course on Government and Politics #22 : judicial Decisions

The teacher says:

"[Supreme Court] justices might be influenced by congress because they know that, unless the case involves the constitution directly, congress can respond to a decision overturning a law ... by passing a new law"

I don't understand. I thought that the Supreme court can strike down an act of congress only if it is unconstitutional. Don't you mean that by "judicial review"? So how the congress can respond by a decision overturning a law (which should imply that the law is unconstitutional) by passing a new law? Wouldn't the new law be unconstitutional as well?

  • The teacher must mean Congress can pass a new law that it the Supreme Court could not strike down as unconstitutional. In other words, Congress could correct the defect in the law. May 26, 2017 at 2:29

4 Answers 4


There are, in essence, two "layers" of federal law. The Constitution, and the body of laws passed by Congress.

The Constitution cannot be changed by Congress directly, and in any case, the process of doing so is, by design, slow and complicated.

A law, by contrast, can be altered, overturned, or replaced in technically as little as a day, if the leadership and majority of both houses of Congress and the Presidency are all on board and co-ordinate, although a few weeks is much more normal.

To give an example of what I mean, consider the (somewhat) recent executive decree made by President Trump to block entry from citizens of six countries to the United States. At the moment, it is being challenged in the court system at time of writing. There are several challenges pending at the moment: some of them based on Constitutional claims, others based on legal claims. For example, two particular challenges are based on violations of the Establishment Clause of the Constitution and of the Immigration and Nationality Act of 1965 (a law).

Let us, for the sake of argument, say that a majority of each of the houses of the US Congress supported the executive order. If the executive order was blocked on the basis of violating the Immigration and Nationality Act of 1965, Congress could repeal or amend the act to allow the executive order. (Congress made the act in the first place, and any thing Congress does, Congress can undo).

If the executive order was blocked on the basis of violating the Establishment Clause, Congress cannot re-write the Constitution (single-handedly; they can start the process but it also involves confirmation by a three-forths majority of states (either through legislatures or conventions).

EDIT: Upon re-reading your question and your comment, I would like to make this more clear. While the Supreme Court can only overturn a law on constitutional grounds (i.e. it violates a rule set forth in the Constitution), they can block applications and enforcement of the law on legal grounds (i.e. it violates a rule set forth in a law passed by Congress). The Supreme Court deals with more than "mere" Constitutional issues, as they are the ultimate court of appeal* for all federal cases in the US.

*Any federal case (and many state cases) can be appealed to the Supreme Court, however, the Supreme Court has the ability to decide which cases it wishes to hear.

  • Thanks now it makes more sense. Although the executive order should be an order and not a law, while the teacher talked about "a decision overturning a law". But I think maybe it's just badly worded. Does the power to overturn executive orders that contrast with Congress Statutes fall under "judicial review" or does it have some other name? May 26, 2017 at 14:14
  • @raffamaiden: Perhaps my example was bad, bringing up the executive order (although I thought that would be both a current example on which a lot of information could easily be found, due to its recent and controversial nature). An executive order is similar to a law in effect, although it is more restricted. The point is not that the executive order is being overturned; the point is that the REASON the order is overturned determines Congress's possible response. I will edit my answer to make this more clear.
    – sharur
    May 26, 2017 at 16:19
  • Thanks. So let's suppose that in 2000 Congress make a law, called Law B. The Supreme Court finds that this law, Law B, contradicts a lae previously enacted by the same congress, Law A, in 1990, but law B does not explicitly overturn that law. Can the Supreme Court overturn law B, also if it isn't unconstitutional but just go against another law? And of course the Congress can respond by writing "Law A is overturned" in Law B2, or by canceling Law A directly, right? May 26, 2017 at 17:53
  • Otherwise I don't see how the Congress can overturn a LAW which is not unconstitutional May 26, 2017 at 18:05
  • @raffamaiden: That is correct. Also, a federal agency might produce rule C, to enforce law B, which conflicts with law A. In which case, Congress can pass a new law to overturn law B or overturn law A or modify either of them. (Although technically, the Congress in 2000 is a different congress from the one in 1990). However, Congress can overturn any LAW it so wishes, at any time, for any reason. What Congress has done, a future Congress can undo. (Unless you meant to write "Supreme Court" in your second comment).
    – sharur
    May 26, 2017 at 18:11

Keep in mind that the U.S. Supreme Court usually is engaged in interpreting valid laws that are passed by Congress, rather than interpreting the U.S. Constitution or invalidating laws passed by Congress.

If a congressionally passed law, strictly interpreted, leads to an unwise or unfair result, the U.S. Supreme Court may nonetheless enforce it because Congress can fix the law to make it more fair. For example, the U.S. Supreme Court has held that retirement plans governed by federal pension law (ERISA) are not subject to state probate law provisions that invalidate beneficiary designations upon divorce that are present in almost every state. But, while this result is often unfair, it is one that Congress can change any time it turns its attention to this issue.

But, when the U.S. Supreme Court interprets the constitution, that can't be amended easily, so the U.S. Supreme Court is more reluctant to interpret the U.S. Constitution in a manner that leads to an unwise or unfair outcome. A famous quote expressing this idea is that "The Constitution is not a suicide pact."


The Supreme Court can strike down an unconstitutional law.

With a law they don't consider unconstitutional, they, like any court, can "interpret" it.

Suppose a law says it's illegal to operate a bicycle on public roads unless it has brakes. There are coaster brakes, operated with the rider's feet, and the kind of hand-operated brakes with pads.

But then someone rides on the public road a bicycle so designed that the pedals always move when the wheels are turning. Thus the rider can slow down the bicycle by resisting the motion of the pedals. (These are used in indoor bicycle racing.)

That rider is accused of violating the law. The judge must decide whether that system, differing from the usual sorts of brakes, constitutes "brakes" in the sense intended by the law.

That is interpretation.

The judge's ruling may then be a binding precedent having the force of law. But the legislature can alter it. The legislature cannot alter the Supreme Court's ruling that a law is unconstitutional.


The presumption for these powers is that the Supreme Court overturned the law because it was inadequate or unconstitutional in some way. So this informs the next iteration of the law and Congress must fix it, because it is the only power vested.

So Congress must pass a new law that refines the old one, so that it incorporates the judges` wisdom of the matter, as well as the original intention of the Congress.

(By the way, this "passing a new law" must involve cleanup of the old, so that you don't have stodgy laws hanging around. Get to it please.)

  • 2
    Congress is not "required" to do anything. It can leave the status quo alone for as long as it chooses, which might be quite awhile if the political situation has changed since it first passed the law.
    – Cadence
    Dec 31, 2023 at 18:53
  • @Cadence: While you may be right under the Law, the Law is underpinned by something called the "social contract". This is the agreement the People make their government so that it may exist. Without this, the Supreme Court, the President, and the Congress have no authority except by intimidation, so best to heed or consider such opinions of educated citizens. Jan 1 at 19:09

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