an even number of Justices. As discussed in Chapter 2, Congress has broad power to establish the number of Justices on the Court.[131] Even using a rule of majority vote, a six-Justice Court in effect requires a 2/3 supermajority vote (four of six) to act, while an eight-Justice Court in effect requires a 62.5% supermajority (five of eight).
2. Deferential Standards of Review
The related proposal discussed above—for Congress to limit the Court’s authority to situations of clear constitutional error (or a similar standard of review)—would raise generally parallel constitutional issues. There would first be the question of the constitutional source of Congress’s power. Congress might claim power from the Exceptions and Regulations Clause or from the Necessary and Proper Clause, each of which would be subject to the potential objections noted above in relation to supermajority voting proposals. There might also be the objection that establishing a standard of constitutional review for the Court, like establishing a voting procedure in constitutional cases, is committed to the Court, not Congress, by the vesting of “the judicial Power” in the courts in Article III, Section 1.
Congress commonly prescribes standards of review for courts in statutory and administrative matters, and this is generally not thought to raise constitutional problems. For example, the Administrative Procedure Act provides for judicial review of certain agency actions under an “arbitrary or capricious” standard, and some statutes wholly preclude judicial review of administrative or executive determinations. As described previously, in AEDPA Congress imposed a deferential standard of review on federal courts’ habeas corpus review of state criminal convictions, and the Supreme Court has routinely applied AEDPA without finding constitutional problems.[132] However, a congressionally prescribed standard of review for constitutional claims more generally is arguably distinguishable. AEDPA applies only to cases on collateral review after state court convictions have been upheld pursuant to nondeferential standards on direct review or otherwise have ripened into final judgments. The Court might well find a congressionally mandated standard of review in constitutional cases to be an infringement of the judicial power.
Of course, a supermajority voting rule or a deferential standard of review could be imposed by constitutional amendment, regardless of any limitations under the current Constitution. Several of the historical proposals for supermajority voting requirements took the form of constitutional amendments.[133] As discussed above, there would be substantial technical issues of implementation, particularly for supermajority rules, but these could conceivably be addressed by careful drafting.
