My Big Idea: Supreme Court Supermajorities

Like my colleagues, I'm out at the Atlantic-sponsored Aspen Ideas Festival for the next few days, and last night I attended the opening ceremonies, where a parade of worthies stood up to offer their "big idea" for the week. Matt's already taken note of the evening's most interesting moment: Shelby Steele choosing "the case against white guilt" as his big idea, which led to a certain amount of seat-shifting among the predominantly-liberal audience, who are after all attending a Festival that frequently partakes of precisely the spirit Steele was criticizing. Which is to say: Good on the organizers for having him. (Though I agree with Matt that Steele largely lost me when he concluded by arguing that "white guilt" is largely responsible not only for the failures of affirmative action, but for our military difficulties in Iraq as well.)

Steele was followed to the podium by Sandra Day O'Connor, who delivered rather less memorable remarks about civic engagement, which included her usual bit about how we need more respect for the judiciary and fewer attacks on activist judges in our public life. She seemed like a perfectly nice, perfectly intelligent person, but listening to her I experienced something like the feeling Jim Manzi expresses here: Namely, a mix of annoyance and outrage at how many significant controversies in American life have come down to the question of what Sandra Day O'Connor (and now Anthony Kennedy, of course) thinks about the matter.

With this in mind, here's my big idea for the week. Over the past few years of court-watching, I've gradually moved from supporting some version of Scalia-style originalism to a much more radical judicial minimalism, in which the Court would be obliged to show far greater deference to the other branches of government than either liberal or conservative jurists show today. (I have, of course, no qualifications to argue seriously for any theory of jurisprudence, but set that aside.) Of course, judicial nominees' fine-sounding theories of minimalism have a way of collapsing upon contact with the kind of power the Supreme Court wields, so perhaps we ought to consider enforcing it - for instance, by requiring a supermajority of the Justices (either 6-3 or 7-2) to deem any existing legislation unconstitutional.

Essentially, this model would mean that whenever there are strong arguments on both sides of a given constitutionality question - the sort of situation that produces most of the 5-4, "how will Kennedy vote this time?" decisions - the Court would be forced to defer to the legislative branch. The theory would be that in a polarized Court, if you can't convince at least one Justice who doesn't share your ideological preconceptions to side with you - and there are plenty of recent cases where John Roberts has done exactly that, so it isn't a pipe dream - the issue should be left to the public and their representatives to hash out. (And note that I'm arguing against interest here, because this rule would leave my least-favorite ruling - Roe, decided by 7-2 - in place, while overturning recent decisions - on guns and affirmative action, among others - that I agree with.)

Of course there are all sorts of reasons why this wouldn't work - but hey, it's an Ideas Festival, dammit! I'm just throwing it out there!

Comments

That is, you'd like to give the four solidly conservative votes on the Court veto power over the other five. Do try to be less transparent.

Posted by Mike | July 1, 2008 10:34 AM

Actually, it seems that this is an endorsement of Stephen Breyer over all other justices, as he has voted to overturn acts of Congress less frequently than any other member of the court. He just doesn't defer on the issues which Ross wants him to defer.

Posted by Matthew Struhar | July 1, 2008 10:50 AM

I have always been for 6-3 majority to strike down a law. However, the problem is what if it is 5-4. The law stands but not as to that litigant? What do lower courts do? They follow the 5-4 ruling and the law is effectively struck down anyway. That is why precedent is so powerful.

Posted by jjv | July 1, 2008 10:55 AM

This is an interesting idea. But there are many other ways for the political branches of government to assert themselves over the judiciary. For a good study on this topic, check out the book The People Themselves, by Larry Kramer, now dean of Stanford Law School.

Posted by CCBiggs | July 1, 2008 10:56 AM

jjv's point is key. The Court doesn't, as such, strike down laws. It rules on cases. How, for example, could you send someone to the gas chamber when a majority on the Court ruled that his sentence was invalid? And how would you argue that, well, his case goes back to the lower court for resentencing, because a 5-4 majority ruled in his favor, but this ruling somehow isn't a precedent because the majority wasn't 6-3?

I've always thought the right reform was to allow a supermajority of the legislature to void a judgement of the Court, similar to the procedure for impeachment. Such a reform wouldn't address the centralizing consequences of a powerful Court, however.

Posted by Noah Millman | July 1, 2008 11:11 AM

No one who has lived through the O'Connor reign -- with her fondness for multi-factor tests and penchant for irresolution -- could be unsympathetic to this proposal.

I think jjv raises some good questions about how this would work. What if the lower courts are split, but the Supreme Court comes out 5-4 against the law? Are the lower courts that found the law unconstitutional overruled even though a majority of judges agreed with them? Or is the 5-4 majority of no effect and the circuit split remains unresolved?

One of the nice things about a Supreme Court, which a supermajority rule jeopardizes, is finality. When the scope and proper balancing of constitutional rights really is subject to dispute and doubt, it's helpful to have a final arbiter provide some guidance. That way legislators can legislate, and others can plan their behavior, with greater certainty. Not only would this rule make it more difficult for the Court to articulate what the Constitution says, but it would also introduce new breeds of law, like the law that is 5-4 unconstitutional, that are dubiously but not sufficiently, this time at least, unconstitutional.

Posted by Rob | July 1, 2008 11:26 AM

From a different approach, what happens if a judge recuses himself (herself)? What would be the necessary vote total? 5-3?

Posted by Bobar | July 1, 2008 11:39 AM

Noah, allowing a legislative body to unilaterally override a decision of the Supreme Court would make a mockery of the system of checks and balances that our Framers believed was key to preserving a constitutional democracy.

The Constitution protects many unpopular minorities - be they handgun owners or "enemy combatants." It is a truism that unpopular minorities are often treated unfairly at the hands of popular government actions. I really shouldn't have to spell out the "tyranny of the majority." It's Political Science 101.

The judicial system is designed to be insulated from the pressures of temporary political outrage so that it can assure those unpopular minorities a fair hearing, and ensure that the government is not violating its own founding documents.

I'm rather shocked that any "conservative" would be talking about giving a legislative body the power to decide what the Constitution means. That sort of uncontrolled, unchecked power makes this liberal shudder with fear. It would mean the death of this nation as we know it.

There's already a constitutional mechanism to override the Supreme Court - it's called an amendment. Is it difficult and time-consuming? Sure is. That's a good thing. The Constitution should not be subject to the whims of public opinion and temporary outrage.

Posted by Travis Mason-Bushman | July 1, 2008 11:53 AM

Interesting idea. I wonder how it would work in regard to existing precedent. Take the example of Roe v. Wade. Ross states that his rule would leave Wade in place, but is that really true? Roe of course is not a "law." It is merely a case that provides an interpretation of the Constitution. A law would be, for example, a statute that forbids abortion. So let's say the State of Louisiana passes such a law. The case goes to the Supreme Court. Even though the law clearly violates Roe (and subsequent decisions), under the supermajority rule, a mere 3 judges could effectively overturn Roe by voting to uphold Louisiana's law. Now, perhaps you could say that it also take supermajorities to overturn past precedent, but at that point the idea starts to get very cumbersome.

Posted by William | July 1, 2008 12:01 PM

My (admittedly college-freshman level) view of the role of judicial review is to serve as a check on excess and overreach by the legislative and executive branches; to insure that the majority don't wreck things for the minority when employing the apparatus of government.

You can certainly debate how useful the Supreme Court has been in executing this function throughout it's history, but with that in mind, I'd rather see more legislation invalidated, not less.

Posted by Jeff | July 1, 2008 12:02 PM

I'm going to be sure to bookmark this post.

My suspicions are that if the (looking rather likely) outcome of the election is that we have a Democratic president and Democratic near-supermajorities in both houses of Congress, it will be rather difficult to find any conservative arguing for "judicial deference."

Posted by Travis Mason-Bushman | July 1, 2008 12:31 PM

"My (admittedly college-freshman level) view of the role of judicial review is to serve as a check on excess and overreach by the legislative and executive branches; to insure that the majority don't wreck things for the minority when employing the apparatus of government."

This is almost right, but you need to add "in the areas in which the Constitution has something to say" as opposed to just a wholesale "defend minority interests no matter what" concept.

To take an absurd example, it may be that a minority of people would prefer blue stop signs to red. The Constitution has nothing to say on the color of stop signs, so the Court is not empowered to protect that minority interest against the majority.

Posted by Sebastian | July 1, 2008 12:34 PM

I think we'd need to think about how this would work in relation to the lower courts.

For one, except in cases of original jurisdiction, the Supreme Court is hearing a case that was decided by a lower court. Should the supermajority be required to overrule the lower court rather than to strike down a law?

And then, would supermajorities be required for the lower courts to strike down a law?

---

In any instance, I'm glad to see Ross's attempt to move the debate beyond the activist/hypocrite shouting match we've had over the last few years.

Posted by JohnMcG | July 1, 2008 12:47 PM

JJV is correct that this is unworkable because of the potential for non-binding 5-4 splits. the Court has a fundamental obligation to decide each case properly before it, and would have to issue a ruling even if it couldn't reach the supermajority. in practice you might see the Court trying to preserve its credibility and the current system of constitutional jurisprudence in the lower courts by refusing to grant cert. on constitutional issues unless the early head-counting among the Justices numbered 6 rather than the required 4 (or you could just change the cert. requirement in constitutional cases).

I think overall term limits for the Justices is a way easier way of accomplishing this: increased responsiveness to the political winds would give you results similar to those reached via extreme deference to the political branches.

Of course, you're proposing to upset a federal separation-of-powers that has lasted for centuries, and that was arguably foreseen and intended by the Founders. And by "how many significant controversies in American life" you actually mean "the legality of abortion."

Posted by donald | July 1, 2008 1:04 PM

I love the idea, but can't get past, so, what happens to a 5-4 decision that rests on the contention that the underlying law is unConstitutional?, which jjv pointed out. And of course I'm hating on Noah Millman's solution: the Supremes tossing out a law isn't like a veto, fer cryin' out loud.
But to some extent I think it's (ideally) a nonissue: the court does occasionally overrule precedent and in reviewing precedent it looks like they read over the old opinions and so take note of how strong the split was. A 5-4 decision -- or really even a 7-2 or any other decision in which the losing side presented a good Constitutional argument -- seems to give you ammunition for the next go-round, if there is one. Granted the first decision raises the difficulty of _getting_ something back to the Court, but it does happen. And of course that's just where legislatures can do the poking Noah suggests -- they set up law aimed at re-opening a decision when the Court changes: such as has been attempted with _Roe_.

Posted by Sanjay | July 1, 2008 1:17 PM

Ross' thesis also postulates the existence of some hypothetical
absolutely permanent 5-4 ideological split, and would essentially codify this split into Constitutional jurisprudence.

I needn't explain at length what's wrong with this postulate, except to say that the ideological makeup of any given Supreme Court is essentially an accident of history, and that same history has shown that most good Supreme Court appointees are not necessarily ideologically reliable.

Posted by Travis Mason-Bushman | July 1, 2008 1:19 PM

Ross,
O’Connor herself, of course, has (broadly speaking) been the most prominent practitioner of a particular version of judicial minimalism, which should be mentioned in any evaluation of the merits of her approach to constitutional interpretation.

Also, in a somewhat conflicting vein, except for his 12:31 post, about which I remain agnostic, I basically agree with Travis’s comments.

Posted by jason | July 1, 2008 1:48 PM

Well, I was also just "throwing it out there" as they say. But the idea of a legislative super-majority voiding Supreme Court decisions doesn't originate with me; it was originally proposed by Senator LaFollette in response to the Supreme Court's refusal to countenance a variety of economic regulation on the grounds of "substantive due process." Later on, the idea was batted about by FDR's Justice Department as a possible alternative to the court-packing scheme that Roosevelt ultimately proposed.

The Supreme Court needs to be insulated from political pressure. It also needs to be responsive to political pressure - a Court that prevented the government from properly functioning because it adhered to a no-longer-supported legal theory would only threaten its own legitimacy, and risk the kind of response that Roosevelt threatened. The trick is finding the right balance. Maybe we're perfectly balanced right now; maybe not. But I don't see anything in this discussion that rises to the level of high principle, much less anything that threatens "the death of this nation as we know it."

Posted by Noah Millman | July 1, 2008 1:50 PM

Here's an idea: leave it the way it is.

Posted by TKD | July 1, 2008 2:05 PM

I thought you needed to have a clue before you had an idea.

Posted by Douthat the Hack | July 1, 2008 2:11 PM

If what we're getting cheesed about here is someone like O'Connor or Kennedy or whomever wielding undue influence on controversial issues due to the ideological makeup of the court, couldn't you just add a tenth justice who only participates in decisions that would otherwise come down 5-4?

Or maybe you could sequester the Supreme Court and force them to deliberate until they come back with a 6-3 or better decision, like with a jury.

Of course, this then begs the question of what is the marginal value of a 6-3 opinion vs. a 5-4 opinion? Does it just make the court's decision feel more legitimate, or is it because we really think that one more justice joining the majority will really make a difference in the quality of the decisions they make (however you define it)? And is reducing the number of cases the Supreme Court decides, which Ross would seem to prefer, likely to result in better government?

My answers would be: fairly low, mostly the former but occasionaly the latter, and no.

Posted by Jeff | July 1, 2008 2:15 PM

And to clarify my post at 12:31, I say that because I know that majority governments can overreach, and for that reason, I strongly desire substantive judicial review of anything that a hypothetical Democratic-controlled government might enact.

For example, I certainly do not want to see European/Canadian-style "hate speech" laws enacted here, and if they were, I hope they would quickly be struck down by the judiciary. The right of a person to open his or her mouth and remove all doubt as to their foolishness is the essence of the First Amendment.

It is the hallowed task of the judiciary to examine the acts of the people and their representatives, and determine whether those acts are in accordance with the limitations on governmental authority and power that were laid down by the Constitution.

Posted by Travis Mason-Bushman | July 1, 2008 2:19 PM

It always comes down to finding out what "Sandra Day O'Connor and now Anthony Kennedy thinks" because we already know what Scalia et al think in advance.

Care to rework your Supreme Court is apolitical post sometime?

Posted by James | July 1, 2008 2:22 PM

Paraphrased Ross but used quotes. My apologies.

Posted by James | July 1, 2008 2:24 PM

I think that the biggest hurdle to any minimal-government approach is the fact that the people, generally, in practice, do not consistently favor either minimalism or interventionism on principle. They deeply resent government intruding where they don't want it, and yet they consistently demand that the government "do something" about whatever it is they don't like. There's also the issue of legislators engaging in resume-building - they want to be able to go to the people at election time with a list of accomplishments, so they have an inherent bias in favor of "doing something."

If you're a minimalist, and you're going to require a supermajority to do anything, it should be to uphold a law, not to strike it down. If you can't convince someone from the ideological opposite pole that this is a legitimate exercise of government authority, then there's a really good chance it's not.

When in doubt, strike it down.

Posted by Brendan Moran | July 1, 2008 4:41 PM

Jeff says,
"If what we're getting cheesed about here is someone like O'Connor or Kennedy or whomever wielding undue influence on controversial issues due to the ideological makeup of the court, couldn't you just add a tenth justice who only participates in decisions that would otherwise come down 5-4?"

Uh....who the hell does a tie go to?

Posted by Sanjay | July 1, 2008 5:17 PM

Constitutional government has survived Great Britain, without interruption, since 1660. It survived in the Dominion of Canada from 1867 to 1982. It has survived (in quite inclement circumstances) in Israel since 1948. In Canada, the ultimate appellate court was limited to making authoritative declarations as to which elected legislative body (provincial or federal) was empowered to enact a particular sort of legislation. Britain and Israel have a body of constitutional legislation but no superordinate 'Constitution' as such; any judicial degree can be overruled by a simple majority of the legislature. The notion that judicial review is a necessary component of free and popular government is simply untrue; and we know from five decades of experience that the culture of the appellate judiciary and the law professoriate is such that judical review can no longer be reconciled with democratic institutions. The court has stolen the legislatures prerogatives time and again; it is time the legislatures stole them back.

Posted by Art Deco | July 1, 2008 6:36 PM

I don't agree with this idea much. For one, there seems to be an emergent belief that the Congress could "regulate" the inner functioning of the Court because the Congress is elected. The problem there is that it raises the democratic aspect of our system over the republican. I would expect Matt Yglesias to dig it, but frankly, I find it surprising Ross likes it.

As to JJV's concern, there is a solution to a 5-4 split. Treat it the way the SCOTUS handles a 4-4 split (when a Justice recuses him/herself, or there is a vacancy). In that case, the lower court ruling stands, and the Court issues no opinion. Yes, circuit court splits could remain unresolved in that case, but that already happens when a 4-4 happens.

Posted by Ramki | July 1, 2008 7:19 PM

On what grounds do people actually think 5-4 decisions have no legitimacy? The Supreme Court has been handing down closely-split votes from the first days of its existence. Why is it now suddenly some unstoppable threat to democracy?

Posted by Travis Mason-Bushman | July 1, 2008 7:52 PM

Britain and Israel have a body of constitutional legislation but no superordinate 'Constitution' as such; any judicial degree can be overruled by a simple majority of the legislature. The notion that judicial review is a necessary component of free and popular government is simply untrue

Given that Britain has been on a persistent downward slope into a police state for the past several years as all sorts of traditional protections (habeas corpus, double jeopardy, etc.) are stripped away, I'd say your examples are dubious.

Posted by Just Dropping By | July 1, 2008 8:41 PM

Sanjay, ties have happened before. A tie affirms the lower court's decision.

Posted by Matthew Struhar | July 1, 2008 8:47 PM

I think a 6-3 Amendment to the Constitution is IN ORDER.

There's WAY too much power in de facto CHIEF Supreme Court Justice, Anthony Kennedy's hands, who pisses of both BOTH "Strict Constructionalist" Cons and Libs alike.

His Tie-Breaking vote makes him de facto POPE of America. He gets to decide EVERYTHING the SCOTUS sees. And we've seen that either he WRITES the decision or gets to decide who writes the opinion, according to his LIKING.

NO ONE PERSON should EVER have such power in America.

That's not what the Founding Fathers WANTED. The Founding Fathers wanted CHECKS and BALANCES. They established the TWO-THIRDS RULE to override a Veto.

A 6-3 Supermajority necessary to OVERRIDE a lower Court's decision is COMPLETELY in accordance with what the Founding Fathers wanted. Reigning and still CHAMPION is the Founding Fathers how Government SHOULD be run.

Posted by sunsawed | July 2, 2008 4:20 AM

Dear sunsawed:

No it isn't.

(although random CAPS do make a strong argument)

The Super-Majority refers to the President Vetoing a bill. The Supreme Court determining that a lower courts' ruling is Constitutional or Unconstitutional has nothing to do with Vetos. It is simply the Supreme Court's job.

The "Majority Rules" system is enshrined in the constitution by the Founding Fathers.

The Supreme Court has functioned perfectly fine for over 200 years with the only noticable failures coming when Jackson ignored them and sent the Cherokees onto the Trail of Tears and when JFK and RFK ignored them and let black and white teens riding on integrated buses get sent to Maximum Security prisons/chain gangs for their efforts.

Posted by jdc992 | July 2, 2008 4:38 AM

The only PROBLEM with 6-3 is when Appellate Courts rule CONTRADICTORY ways. Then and ONLY THEN should a 5-4 SC decision STAND.

So-called Strict Constructionalists should LOVE this idea. It renders the Idea of "Legislating from the Nench" impossible. But that works BOTH WAYS. You can't OVERTURN a Law from the Bench, simply because you have a majority, which is really Legislating from the Bench as much as Justices PONTIFICATING from the Bench is. American Law is as much based upon the Constitution as it is upon PRECEDENT.

6-3 majority not only checks writing Law OUT OF YOUR ASS as it does OVERTURNING established Law, just because you don't like it.

Posted by sunsawed | July 2, 2008 4:39 AM

The Supreme Court does not legislate from the bench. That is what the Federal Courts are frequently accused of and what the Appelate Courts are accused of.

What the Supreme Court does is look at a case, already decided (or LEGISLATED, as you would say) and decide the Constitutional aspect of it. Is is Constitutional or is it Unconstitutional and precedent, which you delight in, plays a tremendous role in that.

You do realize that any changes to the functionality of the Supreme Court would require major revisions to about 1/3 of the Constitution itself, making the argument that strict Constitutionalists should love this idea sound somewhat silly?

Posted by jdc992 | July 2, 2008 4:49 AM

Great Idea.....but why stop just with the judiciary. Why not introduce a requirement that POTUS be elected by (to pick a number) 300 electoral votes or that the majority of the House needs 60% of the votes to select the Speaker.
Rules are rules; a majority is a majority. On what basis (other than your dislike of the decisions and the personality who made them) would you logically burden the judicial branch with a greater requirement for consensus than the other two branches?

Posted by Rick Jones | July 3, 2008 12:27 AM