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Wednesday, April 13, 2005

Should Supermajority Rules Apply to SCOTUS Decisions

Over the past couple of years, some scholars have argued in favor of requiring a supermajority of the Supreme Court to overturn congressional laws.  My good friend Jed Shugerman (who was just hired by Harvard Law) wrote a piece in 2003 arguing that the Rehnquist Court's trend of overturning federal legislation by 5-4 margins is historically anomalous, undermines the presumption of constitutionality, and turns the notion of coequal branches into mere lip service.

I agree that Jed has identified a serious problem, but. . . .

I am not convinced that a supermajority rule fixes it.  It may be true that a 6-3 majority provides a bit more confidence that the Court has it right than a 5-4 majority does, but not much more.  All it would take to increase many decisions from 5-4 to 6-3 would be for Stevens to step down and be replaced by a conservative.  A 6-3 head count does not prove fidelity to the Constitution, nor does it evidence increased deference towards Congress and its role in constitutional interpretation.

The real issue is that perhaps all Justices on the Court pretend as though the Constitution speaks clearly on every issue, and that the choice is always binary: yes, it is constitutional; or no, it is not constitutional.  In fact, sometimes the answer is neither yes nor no, but rather "maybe."

It would be better if the Justices simply recognized that the Constitution simply isn't clear on everything; and if it is not clear--that is, if a reasonable argument can be made in either direction--then Congress should be given latitude to interpret the Constitution reasonably.

Thus, a statute could be overturned even by a 5-4 margin, so long as the 5 Justices believe that any other interpretation is unreasonable.  Similarly, even if 6 (or 8) Justices believe one interpretation to be stronger, they should be hesitant to strike  a statute that is within the realm of reasonable interpretation.

The point is that the Justices, individually and as a group, should be a bit less territorial about the right to interpret the Constitution.

I should be clear that this is just a suggestion I am throwing out there; I am not certain whether it could work in practice, or even if it is desirable.  But I am certainly not bothered by the fact that this suggestion, if followed, would protect statutes in place that I believe ought to be overturned.  That's what it means to live by principle: identify the principle, and let the chips fall where they may--even if on your own head.

Posted by Hillel Levin on April 13, 2005 at 04:17 PM in Legal Theory | Permalink


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Tracked on Apr 20, 2006 7:08:01 PM


Nowhere in the Constitution does it state that the Supreme Court is the only body that may interpret the Constitution. Indeed, members of congress all swear oaths of fidelity to the Constitution, and it is thus incumbent upon them to understand and (therefore) interpret it. If a Justice believes that the right to bear arms is somewhat difficult to understand and apply to the present circumstances, and that its contours and application are therefore muddy, complex, and hidden in the shadows of the past, then why should this counter-majoritarian institution substitute its will for that of The People, whatever the vote is? I would much rather defer to congress in such an instance. As I said, if the Court's majority is overwhelming or unanimous, that may indicate that there is only one reasonable interpretation; but it isn't a perfect proxy.

Looking back through history, I am less than confident that the Court gets it right more times than it gets it wrong. Nor, by any means, do I believe that congress gets it right more often than not. But if I must choose between two flawed institutions, I prefer the one that is ultimately answerable, in some small measure to me. The Court has its place: where congress CLEARLY oversteps its bounds, the Court is an effective check. But where judges are reduced to arguing about how many guns George Washington owned in order to determine whether we may bar people from owning anti-aircraft weapons or whether gun lock laws are permissible, I fear we've missed the point.

Posted by: amosanon1 | Apr 15, 2005 9:43:42 AM

Your position that if "a reasonable argument can be made in either direction--then Congress should be given latitude to interpret the Constitution reasonably" sounds a lot of a sort of qualified immunity for federal statutes. Perhaps this is in proper. Though I would hope that one would study a stack of AEDPA and 1983/QI cases before concluding that government officials need further immunity from review. A lot of fans of individual liberty despise (justifiably, I think) the Court's current QI and AEDPA jurisprudence.

I realize my point is somewhat means-end based. But I think it's appropriate to look at the possible result of your proposal. I think one obvious result would be the implosion of individual liberty.

Moreover, the Court's arful use of standards of review already largely provides the result you seek. E.g., Congress' interpretation of its own powers are subject to rational basis level of review. (But see City of Boerne). Note too that the rationale of the FECA and BCRA cases relied heavily upon deference to Congress. Lowenstein & Hasen even style a chapter in their election law book as "The New Deference."

I'm not sure Congress needs further review from scrutiny, which is what your procedural rule would impose. As with many AEDPA cases, an opinion might lede: "We hold that X-law is not an unreasonable application of clearly established constitutional law." Is that really a world we would want to live in?

Posted by: Mike | Apr 14, 2005 9:37:28 PM

To make things simpler, change the number of justices to an even number, 8 or 10 or 20. That would eradicate 1 vote margin decisions. The lower court decision would stand, often in obedience to a SC decision of 10 years before. The chowderheads on the SC lay in wait for the public to accomodate to their irresponsible, moronic, yet inscrutable gibberish decisions. After 10 years, they pounce and reverse.

Early signs of dementia are also valid reason for removal by force and impeachment, underutilized to date. I am not picking on Rehnquist. I am picking on those buffoons, Scalia and Breyer. Get rid of all 3.

A 5-4 decision indicates the country has not settled the controversy. It brings disrespect to the court.

Posted by: SupremacyClaus | Apr 14, 2005 7:45:32 PM

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