advocates for reform thus contend that the Court should be more reluctant to declare legislation unconstitutional, or that Congress should limit the Court’s power to do so. This understanding, in various forms, has been advocated by commentators, judges, and Justices at various points in history, and some of the witnesses before the Commission forcefully advanced this view.[48] In fact, it is difficult to think of any issue related to the Court that has been discussed more extensively.
This conception gives rise to various questions. What is the category of decisions to which the Court should be more deferential? Is the concern that the Court exercises too much power just about the invalidation of Acts of Congress, or does it extend to the much more common instances in which the Court declares unconstitutional the actions of states or local governments? Those two forms of judicial review raise significantly different issues, but both implicate the power of the Court to overturn enactments by democratically elected bodies. In addition, the Court exercises power over the other branches of the federal government in ways apart from its constitutional holdings. The Court interprets federal statutes and can declare unlawful the actions of executive branch agencies. Though these decisions, unlike constitutional holdings, can in principle be overturned by legislation, in practice the difficulty of enacting legislation routinely means that what the Court says is the last word.
Perhaps the more fundamental question—the one that has attracted so much discussion for so long—is when deference is justified and when it is not. In prominent cases, the Court has intervened to try to protect racial or religious minorities or political dissidents from the abusive actions of majorities.[49] If the Court were to adopt a posture of across-the-board deference, it would no longer play that role. But some critics of the Court assert that greater deference would be worth it—that the gains from those celebrated decisions are outweighed by the instances in which the Court has prevented democratically-elected branches of government from serving the nation’s interests, including by recognizing and protecting individual rights and the rights of minority and disadvantaged groups.[50]
b. A More Representative Court—and Avoiding Partisan Entrenchment
A second democracy-related argument aims for a Court that reflects, in broad terms, the political makeup of the country. The assumption appears to be that such a Court would not issue decisions that diverge too greatly from the preferences of the broader public. The argument is that while the Court need not and should not be responsive to short-term swings in public opinion, it is not good for the Court or the country for the Court to be substantially out of line with public opinion for an extended period.
