advocates contend they belong.[108] In addition, even if a supermajority voting rule changes the outcomes of only a few Supreme Court cases, the jurisprudential consequences of these decisions may be far reaching, as they may set legal precedent for a large number of lower court cases as well. For instance, a decision in which only a bare majority, but not a supermajority, of Justices thought the application of a statute to a criminal defendant violated the defendant’s constitutional rights would apply potentially to many other cases involving the same statute; similarly situated defendants thus might be precluded from raising the same constitutional claim against the federal criminal statute.
An additional challenge involving the application of supermajority voting rules is that court majorities may be able to achieve their preferred outcomes despite a supermajority requirement by narrowly interpreting laws rather than finding them unconstitutional. A supermajority voting requirement would apply only when courts find a constitutional violation but (we assume) not when a court simply reads a law to have a narrow application that stunts its impact. In those cases, a court would avoid the supermajority requirement by understanding it not to be triggered in the first place. One witness testified before us that courts in Japan and the United Kingdom are widely known for their judicial restraint regarding outright invalidation of legislation, but they nonetheless engage in “wide-ranging sub-constitutional review in the guise of statutory (re)interpretation” that effectively limits the purpose and reach of challenged laws.[109]
C. Deferential Standards of Review
Another means of reducing the power of the judiciary by changing its decisionmaking practices would be for Congress to impose a deferential standard of review in constitutional cases. (We assume this reform would apply to the judiciary generally, as it appears to make little sense to impose deference only on the Supreme Court.) Like a supermajority voting requirement, this reform would have the purpose of reducing the courts’ propensity to invalidate acts of Congress (or acts of the political branches and the states more generally, depending on how the standard is designed).[110] Congress could provide by statute that the federal courts shall not invalidate legislation (or other government action) unless the court concludes that it is clearly unconstitutional (or some similar standard). As mentioned earlier, James Bradley Thayer famously proposed a standard of clear unconstitutionality before courts should invalidate congressional statutes, though his proposal was principally directed to courts themselves rather than as a legislative reform.[111] Notably, the Court on its own initiative has adopted highly deferential standards of review in particular subject areas of constitutional
