The proper specification of scope depends on the particular motivation for imposing a supermajority voting requirement. If the motivation is limited to addressing the courts’ insufficient constitutional deference to Congress, then extension of the requirement to cases involving executive action or state laws seems unnecessary. However, if the motivation is a broader concern about judicial countermajoritarianism and insufficient judicial deference generally to the full political process, extension of the supermajority voting requirement to cases involving a wider spectrum of democratic actors makes more sense. Again, extension of the requirement beyond federal actors and federal law complicates the constitutional analysis, as we discuss in the next section.
Another important question of scope is whether the requirements would apply to all laws or just to those that Congress singled out on an issue-specific or even a law-specific basis. For example, instead of specifying a supermajority voting rule for all constitutional decisions of the Supreme Court, Congress might do so only for constitutional review of a wealth tax or only for constitutional review of abortion restrictions. As we discuss further in our constitutional analysis, whether a supermajority voting rule applies generally or on an issue-specific basis might influence its constitutionality as well.
No matter how the requirement is designed, a supermajority voting requirement is likely to affect only a limited number of cases as a practical matter. By its terms, the requirement would not affect cases where a majority of the Court votes to uphold the action in question. In addition, the requirement would not change the outcome where the Court finds a constitutional violation by a supermajority vote. Unlike other disempowering reforms such as jurisdiction stripping, a supermajority voting rule would leave the Court (and lower courts) with clear authority to invalidate laws for unconstitutionality. The supermajority requirement changes outcomes only where the Court would invalidate a law by a bare majority rather than a supermajority.[105]
Of course, the relatively few close cases where a supermajority voting requirement would affect the outcome may be quite important. Shelby County v. Holder, in which a 5–4 majority of the Supreme Court invalidated Section 4 of the Voting Rights Act, was such a case.[106] Similarly, United States v. Windsor, where a 5–4 Court majority declared unconstitutional part of the Defense of Marriage Act,[107] also would have been decided otherwise under a supermajority voting rule. Much of the support for disempowering reforms galvanizes around similarly controversial closely decided cases, in which the Court has divided narrowly along ideological or partisan lines. For those critical cases, supermajority voting requirements could marginally redistribute resolution of close constitutional calls to Congress, where these
