III. Proposals to Enable Legislative Overrides of Supreme Court Decisions
Another way to reduce the Supreme Court’s power would be to allow Congress tooverride Court decisions that strike down federal or state legislation on constitutional grounds.[134] A constitutional amendment adopting a system of legislative overrides was urged in the Progressive Era and during the New Deal period. More recently, the idea of an override has been floated by advocates on both the right and left of the political spectrum as a way to minimize judicial supremacy—i.e., the system under which the Court is the final and authoritative arbiter of the constitutionality of statutes or executive action. Legislative overrides exist in several countries, including in Canada and Israel, and other countries reject judicial supremacy even without a formal system of legislative overrides.
Legislative override systems can take different forms. For example, section 33 of the Canadian Charter of Rights and Freedoms, known as the “notwithstanding clause,” allows both the federal Parliament and the provincial legislatures to “expressly declare” by a simple majority that a law “shall operate notwithstanding” a provision in the Charter, whether or not a court has already ruled the law unconstitutional. Only some Charter provisions may be overridden, and an override ceases to have effect five years after it comes into force, though it may be reenacted by the legislature upon its expiration.[135] Israel’s legislative override system is similar but allows an override only by the national parliament, applies only to the right to “freedom of occupation,” and has a four-year sunset provision.[136]
A constitutional amendment establishing a legislative override system would allow Congress and the President to override Supreme Court decisions that strike down legislation on constitutional grounds. The system could follow the ordinary legislative process of bicameralism and presentment; alternatively, an override could require a supermajority vote by both houses of Congress, as well as presidential signature. A system could allow override of any court decision striking down a statute on constitutional grounds, or it could be limited to decisions involving certain constitutional provisions. It could allow permanent override of decisions or it could specify that the override will sunset after a particular period of time, at which point the courts’ prior interpretation would prevail. In addition, the system could allow Congress to act prospectively in anticipation of a negative court decision or only after a court has struck down legislation.[137]
