set the start of the Court’s annual Term (the first Monday in October),[124] to be held at the “seat of government.”[125] These statutory provisions “carry[] into Execution” the judicial power vested in the Supreme Court by the Constitution.
However, one might conclude that Congress’s power to carry into execution the powers of the Supreme Court only empowers Congress to facilitate the operation of the Court. Legislation designed to limit the power of the Court (as a supermajority voting requirement might plausibly be described) would arguably not be enacted to carry into execution the Court’s power, but rather to frustrate (to some extent) the Court’s power. It thus might not be regarded as “necessary and proper” to a constitutionally permissible purpose.
Alternatively, one might locate Congress’s power to prescribe judicial supermajority voting rules in Congress’s power to make laws necessary and proper to carry into execution Congress’s own powers. For example, in legislating to regulate commerce among the states, Congress might think that limiting the Court’s review of such legislation is necessary and proper to giving that legislation full effect. But one might also conclude that Congress’s power to effectuate its own legislation does not extend to limiting the Court’s power of constitutional review (or, in textual terms, that limiting the Court’s review is not “necessary and proper” to Congress’s exercising its own power).
Regardless of the potential sources of congressional power, the Court might also take the position that judicial action by majority vote is implied by the grant of “the judicial Power” to the Court in Article III,[126] since action by majority is the usual and historical practice of multimember courts and was the presumed way that courts operated at the time of the Founding. At minimum, it might be thought that the power to determine voting rules lies with the courts through the Constitution’s vesting of the judicial power. On this view, Congress would not have power to interfere with a power constitutionally granted to another branch. However, judicial action by majority vote could also be viewed merely as a default rule that could be altered by Congress, assuming Congress had an applicable power granted to it by the Constitution.
There is little precedent or practice to inform any of these matters. Congress has rarely acted in ways that materially restrict the Court’s decisionmaking procedures. As discussed in Part I of this Chapter, scholars have debated how the Supreme Court’s decision in United States v. Klein[127] affects Congress’s powers to control the Court’s decisionmaking. Klein’s implications for Congress’s power to impose a supermajority voting rule on the Court are uncertain.[128] One reading of Klein is that Congress infringes the judicial power when it directs
