Presidential Commission on the Supreme Court of the United States
Supreme Court’s fundamentally “countermajoritarian” character is in tension with the basic commitments of a democracy.
The concern about excessive Court power is not limited to one political camp. Conservatives objected to the Warren Court’s assertion of judicial supremacy in desegregation and criminal law cases,[155] as well as to more recent rulings striking down prohibitions on gay marriage and restrictions on abortion. On the left, concerns about judicial supremacy, dominant during the early twentieth century when the Court routinely struck down legislation protective of workers and consumers, have returned in recent years as the Court has exercised less deference to congressional judgments about the scope of the Reconstruction Amendments and civil rights (e.g., in voting rights cases such as Shelby County v. Holder),[156] and as it has used the First Amendment to invalidate campaign finance regulation and union security agreements.[157]
Proponents of legislative overrides also emphasize two other, related goals: Overrides would strengthen the system of checks and balances by allowing Congress the power to override the Court much like it can override presidential vetoes, and they would strengthen public deliberation and discourse on constitutional matters by empowering the people’s representatives to decide constitutional questions and thus returning such questions directly to the political process.[158]
As a theoretical matter, a system of legislative overrides should accomplish all three of the goals their proponents advance. By expressly allowing Congress to overrule the Court’s constitutional decisions, the power of Congress over fundamental social, political, and cultural decisions would be augmented, the power of the Court would be checked, and more actors would be engaged in constitutional interpretation.
In practice, however, the evidence from countries with both judicial review and legislative override systems—chiefly Canada and Israel—is mixed.[159] In both Canada and Israel, despite language in the constitutions enabling legislative overrides, the federal legislatures have used the power rarely.[160] One might predict a similar outcome in the United States, particularly if a legislative override system were to require a two-thirds or other supermajority vote by Congress. Scholars note, however, that even if the use of legislative overrides is infrequent, the mere possibility of legislative overrides may influence the Court, for example by making it more deferential to the elected branches.[161]
Another way in which legislative overrides might not achieve their goals is if they enable Congress to overrule constitutional decisions made only by the Supreme Court. This approach
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