Ruth Marcus’s Phantom Fear

by Ramesh Ponnuru

The WaPo columnist writes:

Perry’s ideas range from wrongheaded to terrifying: requiring federal judges to stand for reappointment and reconfirmation; and letting Congress override the Supreme Court with a two-thirds vote in both houses. This “risks increased politicization of judicial decisions,” Perry allows, “but also has the benefit of letting the people stop the court from unilaterally deciding policy.”

Some benefit. Imagine what would have happened in the aftermath of Brown v. Board of Education if the Perry rule were in place.

Brown v. Board was pretty popular, except among Southern whites. Karlyn Bowman of the American Enterprise Institute tells me that in November 1955, Gallup found 71 percent approval among non-Southern whites and 53 percent approval among Southern blacks. (Interesting contrast.) It’s hard to see how a Senate majority replacing five justices on the Court, let alone two-thirds of Congress voting to overturn Brown.

The two-thirds proposal Perry mused about seems like a great deal of effort to change not very much. Offhand I can’t think of any important Supreme Court decision that would have certainly lost a two-thirds vote, and even unimportant decisions that would have lost aren’t easy to come up with. (The flag-burning case, maybe?)

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