Presidential Commission on the Supreme Court of the United States
without American-style judicial supremacy—including Australia, New Zealand, and numerous European countries—are just as effective when it comes to protecting rights (although it is important to note that the comparative analysis is challenging, in part because those jurisdictions have very different structures of governments and broader commitments to universal social benefits).[163] Proponents of overrides would also argue that federalism concerns are overstated, given that the design of Congress already adequately represents the interests of states.
Meanwhile, concerns about minority rights, rule of law, and deliberation could potentially be addressed in the design of the system. The systemic consequences of congressional overrides would depend significantly on the details of the system adopted. The varying approaches have tradeoffs. For example, requiring a two-thirds majority of both houses of Congress to override the Court would reduce the risk of threat to minority rights and would require significant congressional deliberation about the underlying constitutional issue. But this approach would also make overrides much less likely to occur. Limiting overrides to cases that do not involve certain fundamental rights—as is done in Canada[164]—would limit the risk to those rights, but unless very clearly elaborated, would leave great discretion with the Supreme Court. Adopting a “sunset” element, where Congress’s override would last only for a certain number of years and then would need to be reenacted,[165] might also serve as a safeguard against long-term incursions on individual rights and would encourage continued constitutional debate but could introduce greater uncertainty and instability in the law. Finally, a system that only permitted a legislature to issue an override after the Court has rendered its constitutional judgment, rather than insulating its laws preemptively, could help raise the political costs of an override and prompt the legislature to directly engage the constitutional principles at stake.
C. Constitutional Analysis
As noted in the preceding analysis, the most straightforward way to adopt a system of legislative overrides would be through constitutional amendment, as was urged during the Progressive and New Deal eras. Absent constitutional amendment, it is highly likely that the Supreme Court would strike down a statute (or congressional rule of procedure) setting forth a system for legislative overrides. The Court would likely conclude that it—not Congress—has ultimate authority under Article III to determine the constitutionality of federal statutes (as well as state statutes and executive action).[166] On this view, any effort at legislative override absent a constitutional amendment would constitute an impermissible end run around the amendment process established by Article V of the Constitution. Indeed, the Article V
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