Presidential Commission on the Supreme Court of the United States
- ↑ Thayer, supra note 2, at 144.
- ↑ Shugerman, supra note 87, at 932; see also John O. McGinnis & Michael B. Rappaport, Supermajority Rules as a Constitutional Solution, 40 Wm. & Mary L. Rev. 365, 437–38 (1999) (generally advocating for supermajority rules as a tool for achieving better results).
- ↑ Shugerman, supra note 87, at 932–35.
- ↑ See generally Ronald Dworkin, Taking Rights Seriously 85 (1978) (“A judge who is insulated from the demands of the political majority whose interest the right would trump is, therefore, in a better position to evaluate the argument [about the right].”).
- ↑ Doerfler & Moyn, supra note 2, at 1742.
- ↑ Shelby County v. Holder, 570 U.S. 529 (2013); see Bowie Testimony, supra note 2, at 8–9.
- ↑ Doerfler & Moyn, supra note 2.
- ↑ See Guha Krishnamurthi, For Judicial Majoritarianism, 22 U. Pa. J. Const. L. 1201, 1240–43 (2020).
- ↑ See Law Testimony, supra note 89.
- ↑ See William J. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 495 (1977).
- ↑ See Caminker, supra note 79, at 73–75; Shugerman, supra note 87, at 1012–19 (listing Court decisions invalidating congressional acts and noting cases decided by a bare majority).
- ↑ See 570 U.S. 529, 532 (2013) (noting 5–4 majority).
- ↑ Defense of Marriage Act, 1 U.S.C. § 7, invalidated by United States v. Windsor, 570 U.S. 744 (2013).
- ↑ Cf. Presidential Commission on the Supreme Court of the United States 1 (Aug. 2021) (written testimony of Center for American Progress), https://www.whitehouse.gov/wp-content/uploads/2021/08/CAP-Testimony.pdf (advocating supermajority voting requirements as a mechanism to steer the Court away from “blockbuster political issues”); Bowie Testimony, supra note 2, at 3–5 (arguing that rights are more reliably protected through Congress than through the Court).
- ↑ Dixon Testimony, supra note 5, at 10.
- ↑ See Caminker, supra note 79, at 88 (comparing deferential review with supermajority rules as ways of limiting the Court’s role in constitutional adjudication).
- ↑ Thayer, supra note 2, at 144.
- ↑ See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955).
- ↑ See, e.g., Administrative Procedure Act (APA) § 10(e), 5 U.S.C. § 706(2)(A) (directing courts to “set aside agency action … found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”); Dep’t of Com. v. New York, 139 S. Ct. 2551, 2569 (2019) (describing the APA’s arbitrary or capricious standard as “deferential”).
- ↑ Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254(d)).
- ↑ See Jacob E. Gersen & Adrian Vermeule, Chevron as a Voting Rule, 116 Yale L.J. 676, 685–86 (2007) (arguing that a “hard solution” like a supermajority voting rule is more effective in producing deference than a soft solution like a more deferential standard; judges might not comply, consciously or not, with a statutorily imposed deferential standard and may instead fall back on a traditional, less deferential standard).
- ↑ For an overview of scholarly views and responses, see Shugerman, supra note 87, at 971–88.
- ↑ U.S. Const. art. III, § 2, cl. 2.
- ↑ Congress has a strong claim to broad power to regulate lower federal courts due to its plenary power to decide whether to establish such courts in the first place. See U.S. Const. art. I, § 8, cl. 9. Thus, Congress’s powers to impose a supermajority rule on lower federal courts or to prescribe the effect on lower federal courts of the Supreme Court failing to reach the necessary supermajority seem to have fairly firm constitutional foundations.
- ↑ U.S. Const. art. III, § 2, cl. 2.
- ↑ See supra text accompanying notes 58–61.
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