the principal objection would seem to be that it would lessen courts’ ability to protect constitutional rights and structure from transgressions by Congress and the Executive.
D. The Constitutional Permissibility of Supermajority Voting and Deference Rules
1. Supermajority Rules
Whether Congress could impose some form of supermajority voting requirement on the Supreme Court without a constitutional amendment is a difficult question.[116] As with jurisdiction-stripping legislation discussed earlier, a central issue would be the constitutional source of Congress’s power. Again, like jurisdiction stripping, one possibility is the Exceptions and Regulations Clause of Article III, which grants the Supreme Court “appellate Jurisdiction, as to both Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”[117] Reliance on this provision would be subject to many of the difficulties discussed earlier with respect to jurisdiction stripping. Further, it is less clear that this clause allows Congress to regulate decisionmaking procedures of the Court, as opposed to matters affecting its jurisdiction—the term used in the text. However, one could argue that a supermajority voting rule is a “regulation” of the manner in which the Court exercises its appellate jurisdiction.[118]
To the extent the power to create supermajority voting rules is located in the Exceptions and Regulations Clause, that power would likely not extend to matters under the Court’s original jurisdiction, which is described in a separate sentence of Article III and so appears not to be covered by the Exceptions and Regulations Clause.[119] That could create an odd situation: The majority required to overturn a statute on constitutional grounds would depend on the route the case took to reach the Court. Although the vast majority of cases currently reach the Court through its appellate jurisdiction, that might change if the supermajority rule applied to one type of jurisdiction but not the other.[120]
Another possible source of congressional authority to impose a supermajority voting rule might be the Necessary and Proper Clause of Article I, Section 8.[121] That clause grants Congress authority to “Make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” It is commonly understood that this clause is the source of Congress’s power to legislate with respect to the structure and procedures of the Court. For example, Congress has by statute designated the size of the Court as nine Justices,[122] with a quorum of six required for issuing decisions,[123] and
