Date Written: May 4, 2022
Abstract
Over the past three decades, the Supreme Court has struck down federal statutes by a bare majority with unprecedented frequency. This Article shows that five-four decisions regularly overturning acts of Congress are a relatively recent phenomenon, whereas earlier Courts generally exercised judicial review by supermajority voting.
One option is to establish the following rule:
The Supreme Court may not declare an act of Congress unconstitutional without a two-thirds majority. The Supreme Court itself could establish this rule internally, just as it has created its nonmajority rules for granting certiorari and holds, or one Justice who would otherwise be the fifth vote could adopt the rule on his or her own.
Congress arguably has the power to enact such a rule under the Exceptions and Regulations Clause in Article III of the Constitution.
Part I of this Article traces the institutional value of deference to Congress and of voting by consensus throughout the history of the Supreme Court, and along with a detailed appendix, it shows how rare 5-4 splits were in invalidating federal legislation.
Part II supports this voting rule with deliberative democratic theory, epistemology, and constitutional values. A consensus rule minimizes the problem of, and more importantly, the appearance of, arbitrariness, and it promotes democracy's values of dialogue, consensus, reason, and legitimacy. The Constitution's structure of checks and balances and the Article V amendment process point to a two-thirds rule as symmetrical and appropriate for constitutional politics, especially for one branch to check the other two.
Part III discusses the mechanics of the rule in practice. Interviews with some of the judges on state courts indicate that their courts abide by the rule in good faith and do not subvert it.
Part IV argues that Congress has the power to create the rule, as Article III "exceptions and regulations" for the Supreme Court's jurisdiction.
Part V briefly surveys similar proposals during the 1820s, Reconstruction, the Progressive Era and the 1920s, the New Deal, the Warren Court, and the Burger Court.
If the goal of judicial review is to guard against government abuses, there also must be safeguards against the Court's abuse of its final and supreme power over the law.
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