Presidential Commission on the Supreme Court of the United States
the Justices’ capacity to invalidate legislation. They are designed to shift power to resolve major social, political, and cultural issues from the Court to the political branches.
Without attempting to address all potential means of reducing the Court’s power, this Chapter examines jurisdiction stripping; supermajority voting requirements for the invalidation of congressional or other government action, as well as other rules that would require courts to show greater deference to the political branches; and proposals for a constitutional amendment to authorize Congress, through legislation, to override decisions of the Supreme Court and other courts. The Chapter analyzes how such reforms might affect the role of the Supreme Court or other courts in relation to the elected branches of government; the potential benefits and costs of the proposals; and whether they would require constitutional amendment.
The Chapter concludes that the efficacy of proposals targeting the jurisdiction of the Supreme Court or otherwise constraining its decisionmaking depend on the details of the proposals, including whether they also affect lower court and state court decisionmaking. We also conclude that the reforms that would most directly reduce the Supreme Court’s (and other courts’) power over fundamental social questions are also ones that, absent constitutional amendment, the Court would most likely find to be unconstitutional. However, the Chapter highlights arguments regarding how Congress might engage in more robust constitutional interpretation and enforcement even without constitutional amendment. Without taking a position on the ultimate merits of such proposals, this Chapter aims to help inform further debate about whether reforms would be worth pursuing.
Chapter 5
Chapter 5 addresses how the Supreme Court conducts its work and explains its decisions. Although much of the public discussion about Court reform has been focused on structural issues, the Court’s internal procedures and practices also have been a part of contemporary debates about the Court’s role and operations. Accordingly, Chapter 5 focuses on three sets of issues.
The first is the Court’s use of emergency orders, which are issued without the rounds of briefing and oral argument that its merits cases receive, and often also without a written explanatory opinion—even in cases that can generate intense public debate, involving issues of national importance or great practical impact. The Chapter reviews recent controversies relating to emergency orders and apparent changes in the Court’s approach to managing them.
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