Presidential Commission on the Supreme Court of the United States
- ↑ U.S. Const. art. I, § 8, cl. 18.
- ↑ Circuit Judges Act of 1869, § 1, 16. Stat. 44 (codified as amended at 28 U.S.C. § 1).
- ↑ 28 U.S.C. § 1.
- ↑ Id. § 2.
- ↑ Id.
- ↑ U.S. Const. art. III, § 1.
- ↑ 80 U.S. (13 Wall.) 128 (1871).
- ↑ See Shugerman, supra note 87, at 972.
- ↑ 521 U.S. 507 (1997).
- ↑ See, e.g., Pamela S. Karlan, Foreword: Democracy and Disdain, 126 Harv. L. Rev. 1 (2011); Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997).
- ↑ See Judiciary Act of 1789, ch. 20, § 1, 1 Stat. 73 (creating a Supreme Court composed of one Chief Justice and five Associate Justices).
- ↑ It is important to note that not everyone has been convinced that AEDPA’s deferential review scheme is constitutional. See, e.g., James S. Liebman & William F. Ryan, “Some Effectual Power”: The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 Colum. L. Rev. 696, 703–04 (1998) (criticizing AEDPA’s review scheme as applied by the Fifth, Seventh, and Eleventh Circuits); Williams v. Taylor, 529 U.S. 362, 378–79 (2000) (Stevens, J., concurring) (“A construction of AEDPA that would require the federal courts to cede this authority [to say what the law is] to the courts of the States would be inconsistent with the practice that federal judges have traditionally followed in discharging their duties under Article III of the Constitution. If Congress had intended to require such an important change in the exercise of our jurisdiction, we believe it would have spoken with much greater clarity than is found in the text of AEDPA.”).
Caminker, supra note 79, at 117. - ↑ Id.
- ↑ We focus on a system of legislative overrides that would allow Congress to overrule decisions by the Supreme Court or other courts striking down federal or state legislation. However, a broader approach would allow Congress to overrule any constitutional opinion that upholds or rejects claims of constitutional rights, whether or not a statute is involved. Congress would, for example, have power to override such decisions as the Court’s rejection of a Free Exercise claim in Employment Division v. Smith, 494 U.S. 872 (1990), or of a Takings claim in Kelo v. City of New London, 545 U.S. 469 (2005). Because past proposals have not urged such expansive reform, we do not discuss it in any depth, however many of the legal and policy arguments discussed in this Chapter would apply equally or in stronger version to the broader reform.
- ↑ Constitution Act, 1982, § 33, being Schedule B to the Canada Act 1982, c 11 (U.K.); see Nicholas Stephanopoulos, The Case for the Legislative Override, 10 UCLA J. Int’l L. & Foreign Aff. 250, 255 (2005).
- ↑ Stephanopoulos, supra note 135, at 260.
- ↑ Theoretically, a legislative override system achieved through constitutional amendment could also empower state legislatures but this might raise serious federalism concerns given the overall structure of U.S. government. Because this idea has not been proposed, we do not consider it.
- ↑ Cooper v. Aaron, 358 U.S. 1, 18 (1958); see also United States v. Nixon, 418 U.S. 683, 704–05 (1974); City of Boerne v. Flores, 521 U.S. 507, 536 (1997); United States v. Morrison, 529 U.S. 598, 616 n.7 (2000).
- ↑ Kramer, supra note 3, at 105–10, 125, 135–36; see also Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History, at xi (2007) (discussing the theory of departmentalism); Presidential Commission on the Supreme Court of the United States 5–7 (June 30, 2021) (written testimony of Ilan Wurman, Arizona State University) [hereinafter Wurman Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/06/Wurman-Testimony-Supreme-Court-Commission.pdf (noting that the modern Supreme Court’s view of judicial supremacy departs from antebellum understandings of the three branches’ coextensive powers over constitutional interpretation). Notably, the
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