courts to reach an unconstitutional result, which arguably would be the effect of a supermajority voting rule. Thus, the Court might conclude that Klein bars Congress from influencing judicial outcomes through devices such as a supermajority voting rule.
A supermajority voting requirement could be restricted by Congress to particular pieces of legislation, or alternately to a specified area of law, where congressional action arguably warrants greater judicial deference. For instance, Congress might understand the Fourteenth Amendment’s textual direction that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article” as granting Congress broader prerogatives vis-à-vis the courts. The argument would be that a higher bar should apply before courts can invalidate legislation enacted under the specified congressional enforcement powers. To be sure, this position likely would not withstand review by the Supreme Court, absent a change in doctrine. In a different context, the Supreme Court, in City of Boerne v. Flores,[129] largely rejected the view that Congress possesses enhanced authority to interpret the Constitution when acting pursuant to its Fourteenth Amendment enforcement power. Still, four dissenting Justices and many scholars from across the political spectrum have argued that historical and textual considerations support broader congressional interpretative authority with respect to the Fourteenth Amendment than the Court majority recognized.[130]
Attempts by Congress to impose broad versions of the supermajority voting rule—for example, extending it to state courts or to judicial review of state legislation—seem even more likely to raise constitutional doubts as to the source of Congress’s power. Any claim of congressional power to regulate voting requirements in state courts would need to rely on its power under the Necessary and Proper Clause. To the extent that the Necessary and Proper Clause allows Congress to impose a supermajority rule on the Supreme Court’s review of federal legislation (an untested proposition), that power might also be thought to extend equally to state court review of federal legislation. Requiring state court supermajorities to invalidate federal legislation might similarly be necessary and proper to implementation of federal policies. Requiring state court supermajorities to invalidate state legislation on federal constitutional grounds seems less capable of justification under the Necessary and Proper Clause, as it would not involve the implementation of federal legislation.
In sum, while definite conclusions are elusive in this area and the analysis will vary depending on the particular contours of any proposed reform, it seems quite plausible that the Court would find a congressional attempt to impose a supermajority rule on the Court’s decisionmaking, or courts generally, to be beyond Congress’s power. It should be noted that Congress might be able to impose a version of a supermajority rule on the Court by prescribing
