Beyond Ramesh’s point, and to borrow from Ms. Marcus: “Imagine what would have happened in the aftermath of Dred Scott v. Sanford if the Perry rule were in place.” I suppose we could play this game all day. In any event, the Supreme Court has become at least as much a political institution as a legal one — if it were a strictly legal institution, our confirmation process would not be as heated and politicized, and there would be no demonstrations by interested partisans outside the Supreme Court building. That being the case, why shouldn’t the Court be subject to a political check? My only qualm is Perry’s two-thirds super-majority idea. With the practical reality of a 60-vote requirement in the Senate, I don’t see why it should take two-thirds of Congress to reverse the Court when it only takes a margin of one unelected justice to reverse the Congress and the president.
When I was in law school back in the early 1990s, I suggested a variation of what Perry is proposing: Let Congress (with the agreement of the President) override a Supreme Court opinion and adopt a dissent as the law of the land -- by a vote in both houses with a greater majority than the Supreme Court's majority in the decision. So a 5-4 decision would only require about 56% in both houses, a 6-3 decision would require more than a 2/3 majority, and a unanimous Supreme Court could not be overridden.
My reasoning was that a 5-4 decision was quite likely to be on a subject that should probably be decided by political rather than judicial process, while anything that could command unanimity among the justices should probably be immune to the political process, with a sliding scale between those two extremes.
Reply to this commentLinkReport Abusebrilliant idea. would allow for a correct balance. a bipartisan idea,
Reply to this commentLinkReport AbuseI'd have to disagree - the Supreme Court should RUN from political decisions of all kinds! Their job is to interpret laws within the context and meaning of the Constitution - nothing more, and nothing less. They are especially not there to place personal opinions or political trends within the decision process - their role is to INTERPRET existing law, or proposed laws. If the voters disagree with their decision, then there should be some way to rectify it through Congress. But let's not get away from the Court's underlying role in government. Moving away from that is what got us to this point in the first place.
Reply to this commentLinkReport AbuseBecause governing should be as difficult as is possible. Change should come very slowly, especially society transforming change. The founder's wisdom in making this country difficult to govern, and avoiding the tyranny of the majority, is obviously needed, as we saw in the Obamacare debate. That each act of the health care debate was so arduous is exactly what the founders wanted. In the end, that may just save us from Obamacare. I sure pray it does.
Reply to this commentLinkReport AbuseYour point about slow change might be right, but if governing should be as difficult as possible, then just make it impossible and everything will be perfect.
Reply to this commentLinkReport AbuseVery funny. The point, of course, is for government to exist in a state of dynamic tension where movement requires the cooperation of multiple independent groups: Three co-equal federal branches, co-equal sovereign state governments, roadblocks to prevent a congress from binding future sessions, and complex and time consuming amendment process to make it very difficult to change the balance.
The worst offenders these days are the executive level agencies to whom Congress has effectively granted lawmaking power. There's no built in mechanism to stop them or slow them down, and that has to change.
Reply to this commentLinkReport AbusePerhaps I do not know the constitution well enough. I have often wondered why there aren't more pitched battles between the legislative and judicial branches, especially when the Supremes step in to make rulings on wartime military concerns. Any respect for traditional values is certainly lost on the left, yet all they could muster against Citizens United, for example, was a silly rebuke by the President in his SOTU. And they had overwhelming majorities in the House and Senate.
Reply to this commentLinkReport AbuseFor those interested, this 2/3rds idea was introduced in NJ and MT. See External Link
Reply to this commentLinkReport AbuseThere already is a procedure for a 2/3 majority in both houses of Congress to overturn a Supreme Court decision. It's called a "Constitutional amendment". See US Constitution Article V. But it also requires ratification by 3/4 of the states. Perry only omits this second part, which is surprising for someone who values state's rights.
For example, the 14th Amendment expressly overturned Dred Scott v. Sanford. The 16th Amendment expressly overturned another case holding any federal income tax unconstitutional.
Reply to this commentLinkReport Abuseallowing the Congress to overrule the Court is a pretty stupid idea, so why shouldn't McCarthy find it reasonable?
it's not like he's actually a conservative, or knows all that much about legal theory, or the political underpinnings of this country's government.
yeah, lets destroy our great check on popular passion so that any party that gains a large majority in congress has the power to pass any legislation that it will.
what's to stop them from abolishing all other political parties or abolishing the presidency or ruling blue-eyed people ineligible to vote?
Reply to this commentLinkReport AbuseThe supreme court needs to be a check on the executive and congress but it is a political body as well. Term limits seems the best way to go to me. A ten year term with reappointment/rejection by a majority of the state legislatures.
Reply to this commentLinkReport Abuseevery body and every person in public life is "political" and it was never thought that judges would not have personal philosophies. the people who founded the system weren't naive.
lifetime tenure was carefully chosen and its there to insure that the judges serve long terms without much concern to conforming to whomever holds power at the moment.
the courts are design to be the conservative branch of the system and usually function in just that manner.
Reply to this commentLinkReport AbuseThe main problem with the Supreme Court has been its unwillingness to challenge the Congress and the President when they go too far. The Supreme Court abandoned non-delegation, substantive due process, federalism, and economic freedoms. All are areas where the elected branches need to be checked much more, not less.
Social conservatives think the court has been too active because it disrupts the states on issues like gay marriage, gay sex, abortion, school prayer, etc.
But to economic conservatives and libertarians, the court is a non-entity that rubber-stamps almost every invasion of economic liberty the Congress can imagine and in many ways fails to limit the elected officials. We need a stronger judiciary, not a weaker one.
As a sidenote, Madison's convention notes include a debate over whether the judiciary should get a veto power over the Congress. They ultimately decided that the Supreme Court should remain retrospective, not prospective, in its policy role. But it shows that the founders saw the judiciary as a check on the elected branches. The federalist papers show some of this sentiment, too.
Reply to this commentLinkReport AbuseRule Number One of American Government: don't try to do by constitutional amendment what you can already do by simple legislation. Congress can already remove federal court jurisdiction to decide particular issues or types of issues, and jurisdiction-stripping allows state courts to decide those issues separately. Congress has been doing this for centuries. A minority of scholars object, arguing that the judicial power of the United States must extend to all cases arising under the Constitution, but those scholars misunderstand what "judicial power" means (it merely means power to exercise available jurisdiction), and they are warring not only with centuries of congressional practice but also with precedents like Marbury v. Madison (holding that the original jurisdiction of SCOTUS cannot be expanded even if its appellate jurisdiction is reduced).
And if folks want another way to solve the problem without constitutional amendment, Congress can require a supermajority of justices to exercise judicial review, or to exercise certain types of judicial review. The House of Representatives has approved such legislation before.
Reply to this commentLinkReport AbuseThe judicial branch is overpowered and needs to be nerfed.
Reply to this commentLinkReport AbuseIt would be lovely, indeed, if the Supreme Court was returned to the role of co-equal branch of government rather than philosopher king oligarchy.
Reply to this commentLinkReport AbuseRule Number One of American Government: don't try to do by constitutional amendment what you can already do by simple legislation. Congress can already remove federal court jurisdiction to decide particular issues or types of issues, and jurisdiction-stripping allows state courts to decide those issues separately. Congress has been doing this for centuries. A minority of scholars object, arguing that the judicial power of the United States must extend to all cases arising under the Constitution, but those scholars misunderstand what "judicial power" means (it merely means power to exercise available jurisdiction), and they are warring not only with centuries of congressional practice but also with precedents like Marbury v. Madison (holding that the original jurisdiction of SCOTUS cannot be expanded even if its appellate jurisdiction is reduced).
And if folks want another way to solve the problem without constitutional amendment, Congress can require a supermajority of justices to exercise judicial review, or to exercise certain types of judicial review. The House of Representatives has approved such legislation before.
Reply to this commentLinkReport AbuseBecause SC power is a check and balance and perhaps the balance shouldn't be adjusted so boldly.
I have read in NR on a couple of occasions that Congress has the power to remove any case from SC consideration that it wants, but that it had never used this power due to lack of political will. If that is true, then I expect that Perry's supermajority idea even if implemented would never be used, either. I am also pretty sure that Perry knows this, and these ideas are just planks in his grandstand, not serious policy proposals.
Reply to this commentLinkReport AbuseHow about this: repeal the 17th Amendment, and return ONE Senator from each state to selection by the state legislature, leaving the other one under popular election. Then, instead of a supermajority in Congress, you run a simple secret majority vote in each house of Congress. No one's put on the hot seat, states' rights and voices are somewhat returned to the Senate, and the Supreme Court is reined in.
I guarantee you that liberal decisions will be overturned by Congress much more than conservative majority ones will; the present Court has its' best legal and Constitutional minds on the conservative side: Roberts, Scalia, Thomas, Alito - and sometimes Kennedy, who is usually the swing vote.
Reply to this commentLinkReport AbuseThe Court's role is not to interpret the law, but to apply it. While the Court attempted to grab such power in Marbury, there is nothing in the constitution about interpretation.
Reply to this commentLinkReport AbuseIf we were really concerned about state's rights, we could institue a "Constitutional Court," made up of justices from, say, 13 states, serving on a rotating basis so that every state gets a whack at it. The job of this court would be as an appellate court from the SC on matters of constitutional interpretation. After all, shouldn't the parties to the contract have the say in what it means?