Presidential Commission on the Supreme Court of the United States
constitutional interpretations through signing statements, litigation, and enforcement practices that have been in tension with, or even contrary to, Supreme Court precedent.[141] Likewise, Congress has sometimes resisted—or refused to acquiesce to—the Court’s constitutional interpretations, for example by attempting to overrule Court decisions through legislation, or by enacting statutes in considerable tension with prior Supreme Court decisions.[142]
On several occasions over the course of U.S. history, advocates have sought to amend the Constitution in order to grant Congress power to overrule the Supreme Court’s rulings striking down federal statutes through a formal system of legislative overrides. The Progressive Party, which ran a ticket with Senator Robert La Follette (Wisconsin) and Senator Burton Wheeler (Montana) in the 1924 presidential election, included a provision in its platform calling for “a constitutional amendment providing that Congress may by enacting a statute make it effective over a judicial veto.”[143] La Follette was a vocal advocate for the amendment, which would have allowed Congress to override the Supreme Court by repassing any legislation previously declared unconstitutional.[144]
In 1937, Senator Wheeler, who remained a Democratic Senator from Montana following his unsuccessful bid for the Vice Presidency, along with Senator Homer Bone, a Republican from Washington State, introduced a variation on the Progressive Era proposal. Their constitutional amendment would have allowed Congress, by a two-thirds vote of each Chamber, to overturn a Supreme Court decision holding an act unconstitutional—but not until after the election following the Supreme Court decision.[145] Notably, Senator Wheeler was a strong supporter of the New Deal but adamantly opposed President Franklin D. Roosevelt’s proposal to increase the size of the Supreme Court.[146] Reportedly, two of President Roosevelt’s closest advisors, Benjamin Cohen and Thomas Corcoran, also privately opposed the proposal for Court expansion in favor of a constitutional amendment similar to the one proposed by Senator Wheeler. Their version would have allowed Congress to overturn immediately a Supreme Court constitutional decision striking down a federal statute by a two-thirds vote from each chamber, or to overturn such a decision by a simple majority following the next election.[147]
More recently, proposals for overrides by Congress have appeared only in academic writing and public commentary. For example, in 1996, Robert H. Bork—who served as a judge on the D.C. Circuit and as Solicitor General of the United States—wrote an essay in which he argued that the “most important moral, political, and cultural decisions affecting our lives are steadily being removed from democratic control.” He suggested that the Constitution be amended to enable modification or reversal of Supreme Court decisions by a simple majority
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