Supporters argue that legislative overrides would cabin excessive judicial power in favor of democratic decisionmaking, while also encouraging greater constitutional discourse and deliberation within the legislative and executive branches and among the public as part of the political process. They contend that the system can be designed in ways to minimize risk to individual rights, structural design, and the stability of law. Perhaps because an explicit override system would very likely require a constitutional amendment, the academic debate on legislative overrides is relatively limited. No recent commentator has offered a programmatic blueprint for overrides, though arguments have long existed to support the assertion of constitutional interpretive authority by Congress (and the Executive) in ways short of an override. In the analysis that follows, we briefly provide a historical background, an evaluation of various forms of legislative overrides, and a constitutional assessment.
A. Constitutional and Historical Background
As discussed in the Introduction to this Chapter, it is widely believed that the Supreme Court has the last word when it comes to constitutional interpretation and that its decisions bind not only the parties in a particular case but also future action by the President, Congress, and the states. This approach to judicial review—known as “judicial supremacy”—has been embraced by the Supreme Court for many decades.[138] Yet the extent of the Court’s authority to serve as the final interpreter of the Constitution—or to foreclose contrary interpretation by other branches of government acting in their own spheres—has also long been contested.
In the early years of the Republic, many argued that each of the three branches of government was endowed with the power of constitutional interpretation. As long as legislative and executive branch actors obeyed specific Court orders in specific cases, they could act on a contrary interpretation of the Constitution.[139]
Those who embrace judicial supremacy often point to Chief Justice John Marshall’s famous pronouncement in Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is.”[140] Indeed, that line has been cited by the Supreme Court in recent decades to support a strong approach to judicial supremacy. However, according to many scholars, Chief Justice Marshall was asserting only the authority of judicial review—i.e., the power of a court to refuse to give effect to an act or mandate of a coordinate branch of government—not the power of judicial supremacy. Moreover, over the course of the country’s history, numerous Presidents have claimed the right to engage in independent and co-equal constitutional interpretation. Although nearly all Presidents have conceded that they are bound by direct orders from the Supreme Court, they have also offered their own
