adjudication, such as review of ordinary economic regulation for consistency with the Due Process and Equal Protection Clauses.[112]
Though Congress has sometimes imposed deferential standards of review on the federal courts with respect to statutory and other sub-constitutional questions of law,[113] requiring a more deferential standard of review for constitutional questions has been quite uncommon. In AEDPA, Congress imposed a highly deferential standard of review on federal courts (in a different context) that might offer a potential example; the statute prohibited federal courts from granting federal habeas corpus relief to state criminal defendants unless the previous state court adjudication of the claim was an “unreasonable application of clearly established federal law” or based on an “unreasonable determination” of the facts.[114] Congress could consider imposing a similarly deferential standard on constitutional review of legislation.
A deferential standard of judicial review would be functionally similar to, but distinct from, a supermajority voting requirement. It would achieve greater deference than current practice by requiring greater subjective certainty as to a law’s unconstitutionality from each judge before voting to invalidate a law. But at the Supreme Court only a simple majority of Justices would need to vote in favor of unconstitutionality for a statute to be invalidated. By comparison, a supermajority voting requirement is what some scholars call a “hard solution.”[115] It would not require the Justices to adjust their subjective evaluations, but it would seek to protect the decisions of the elected branches by requiring a greater number of Justices to find unconstitutionality. A supermajority voting requirement would not directly impose the clear unconstitutionality standard advocated by Thayer, because it would not restrict judges to voting to invalidate statutes only in cases of clear error. For example, it is possible that a supermajority of Justices could agree that it was a close (not clear) question whether a statute was constitutional but decide that the statute was ultimately unconstitutional. In such a situation, a supermajority of Justices might still decide in favor of unconstitutionality and therefore satisfy the supermajority voting requirement, in spite of the fact that they also agree that the constitutional question is a close or debatable one. Supermajority voting requirements and heightened deference standards thus can produce different outcomes.
A required deferential standard of review seems easier to adopt than a supermajority voting requirement, avoiding some of the complexities mentioned above. It might be less effective in shifting power away from the courts, depending on the extent to which judges were willing to internalize an externally imposed deference standard. Like a supermajority voting requirement, it might lead courts to reach their preferred outcomes by sub-constitutional means, such as by interpreting statutes narrowly. Also like a supermajority voting requirement,
