embraced judicial supremacy since at least the 1950s, when it asserted that “the federal judiciary is supreme in the exposition of the law of the Constitution.”[8] Yet, as discussed below in Part III of this Chapter, this approach to judicial review is not explicitly required by the text of the Constitution or by the Court’s early precedents establishing the power of judicial review. Indeed, judicial supremacy has long been contested, sometimes by Congress and the President and sometimes even within the Court. Critics argue that the Court was not intended to be the exclusive interpreter of the Constitution; rather, as long as legislative and executive branch actors obey specific Court orders in specific cases, they can act in their spheres on a contrary interpretation of the Constitution.[9]
Two other features of our constitutional system combine with judicial supremacy to insulate the Court’s constitutional judgments from the will of the people as it evolves over time. First, the U.S. Constitution is very difficult to amend—much more so than most state and foreign constitutions.[10] Second, as discussed in Chapter 3 of this Report, because Justices serve for life, the timing of nominations is unpredictable. Some Justices serve for many decades and some Presidents have few or no opportunities to make appointments. According to some observers, the result is that the Court may not be reflective of, or responsive to, the people, as expressed through electoral preferences over time.
Proposals to curb judicial power are diverse. Without purporting to be comprehensive, this Chapter examines proposals (1) to strip the Supreme Court and other federal courts of jurisdiction to hear certain kinds of cases, (2) to impose supermajority voting requirements or require courts to give deference to legislative judgments about constitutionality, and (3) to authorize congressional overrides of judicial decisions striking down legislation. As we emphasize, some disempowering proposals specifically target the Supreme Court, while others would apply to lower courts as well. Some would insulate broad categories of legislation from judicial review; others would limit judicial power only with respect to specifically identified issues.
We consider the extent to which such proposals would affect the Supreme Court’s role, or that of the judiciary as a whole, in relation to the other branches of government in the resolution of major social, political, and cultural issues. We also highlight the counterarguments advanced by those who defend the existing role of the Court in our constitutional system. Among other concerns, critics of proposals to disempower the courts worry that such reforms might undermine protections for individual rights, particularly minority rights, or that as more constitutional interpretation is performed by the political branches, the law could become less settled or well-reasoned. Critics also emphasize that
