Presidential Commission on the Supreme Court of the United States
Some scholars also ground their support for supermajority voting on the greater likelihood that the Court will reach correct constitutional decisions if a supermajority must agree that a law is unconstitutional.[96] Supermajority requirements would, in their view, also enhance deliberation and consensus-building among the Justices, leading on balance to superior outcomes.[97]
For skeptics of supermajority voting rules, a central concern is that such measures would undercut judicial capacity to protect constitutional rights against majoritarian overreach. One longstanding, conventional view of the courts and constitutional review is that they serve as a valuable countermajoritarian check on the political branches by vindicating individual and structural rights in constitutional cases, limiting the abuse of power by overweening legislatures and executive officers.[98] A supermajority voting requirement would make it more difficult for courts to protect constitutional rights as they interpret them. A related concern is that a supermajority voting rule would weaken courts’ ability to protect the constitutional structures of federalism and separation of powers against encroachment by Congress. Supermajority voting rules thus might not only enhance congressional power as compared to the courts; they might also enhance congressional power as compared to the states and the executive branch.
Supporters of disempowering proposals counter that supermajority voting requirements actually may bolster constitutional rights precisely by restricting the Supreme Court, on the ground that “rights protection may well be available in superior form through political branches.”[99] Instead of looking exclusively to courts as protectors of individual rights and legislatures as threats to those rights, such commentators admire legislative efforts like the Voting Rights Act as protective of constitutional rights and criticize the Court’s decision to invalidate Section 4 of the Voting Rights Act in Shelby County v. Holder.[100] They see an important role for the political branches in promoting constitutional freedom that courts recently, in their view, have undercut.[101] Moreover, if one thinks the courts are too protective of the states and the executive branch, or that structural disputes are better worked out politically rather than through the judiciary, enhancing congressional power in the area would be an advantage.
2. Efficacy and Implementation
Any ultimate assessment of the systemic consequences of supermajority voting requirements will depend on one’s perspective on the role the Supreme Court and the federal judiciary ought to play within our system of government and on how well the democratic
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