Saving the Court: The Court’s Role in the Constitutional Process (Part 7)

This is part 7 of the Saving the Court series. I would encourage you to read previous posts, including


The Constitution gives Congress power to grant or withhold the jurisdiction of the federal courts. Article III, § II, clause II of the Constitution gives the Supreme Court “original” jurisdiction in a small category of cases. It specifies that “[i]n all the other cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Under the power granted by this language—known as the “Exceptions Clause,”—Congress has made some exceptions to the Court’s appellate jurisdiction. For instance, in the original Judiciary Act of 1789, Congress made no provision for criminal cases tried in state court to be reviewed by the Supreme Court.

Congress also has broad power under the Constitution to determine and adjust the jurisdiction of lower federal courts. In fact, Congress has the power to create lower federal courts, but the Constitution does not require them to do so. Of course, in the Judiciary Act of 1789, Congress chose to create lower federal courts, but significantly limited their jurisdiction. For example, Congress included a jurisdictional dollar-amount requirement for cases brought by citizens of different states—what is known as “diversity jurisdiction”—as well as civil actions brought by the United States. Neither did the Act provide a general grant of jurisdiction to lower federal courts to deal with suits arising under the Constitution, laws, and treaties of the United States. In order to be addressed by lower federal courts, cases must fall within a more specific grant of jurisdiction.

For people who believe that the Court has acted as an impediment to the realization of certain important social goals and has undermined Congress’ ability to protect rights, the Constitution provides them with a way to manipulate the Court’s jurisdiction in order to reign in the power of the judiciary to thwart initiatives put forth by Congress. This ability, often referred to as “jurisdiction stripping,” is nothing new. As indicated previously, Congress has been limiting the Court’s jurisdiction since the very creation of the Court. And attempts to further limit the Court’s jurisdiction, as well as change the Court’s simple majority voting framework for cases that raise a constitutional question, or efforts to give Congress the power to override Court decisions, have met with fierce debate.

This chapter will examine three types of Court reform proposals that strike at the role the Supreme Court plays in our constitutional system. First, we’ll examine jurisdiction-stripping proposals that seek to limit the categories of cases courts hear and/or rule on. Second, we’ll explore a proposal to require a supermajority vote of the Court in order to declare a statute unconstitutional. Finally, we’ll turn our attention to the idea of giving Congress the power to override court decisions.

Proposals to Restrict the Supreme Court’s Jurisdiction

The most common type of “jurisdiction-stripping” proposals we have been offered in recent years involve “issue-specific-jurisdiction-stripping.” Issue-specific-jurisdiction-stripping differs from general jurisdiction-stripping in that issue-specific-jurisdiction-stripping involves a limited or restricted category of case, whereas general jurisdiction-stripping involves a broad category of cases.

For instance, a general jurisdiction-stripping proposal might deal with a court’s appellate jurisdiction broadly, meaning the court does not have the power to hear any appeals. In contrast, an issue-specific-jurisdiction-stripping proposal involves a proposal to restrict the court’s ability to hear appeals on a narrow category of cases, such as only abortion cases or cases involving voting rights.

There are two general reasons Congress would want to strip courts of their jurisdiction. First and foremost, Congress wants to protect legislation from judicial invalidation. In other words, Congress wants to prevent the court from finding the legislation they pass unconstitutional. Second, proponents of jurisdiction-stripping believe it is a way to encourage greater democratic accountability by transferring the power to determine which laws are constitutional from unelected Supreme Court Justices to the popularly elected Congress.

There are three ways a jurisdiction-stripping proposal can be structured:

  1. it can restrict the appellate jurisdiction of just the Supreme Court;
  2. it can restrict the appellate jurisdiction of the Supreme Court and all lower federal courts, and
  3. it can restrict the appellate jurisdiction of the Supreme Court, all lower federal courts, as well as state courts.

Stripping jurisdiction only from the Supreme Court does little good. If the Supreme Court cannot hear a case, then the lower federal circuit courts become the last word on the constitutionality of a case. In other words, if Congress wants to shield legislation from court invalidation, stripping only the Supreme Court of its jurisdiction to hear the case does not achieve the objective. A further problem is, with thirteen different federal courts of appeal, it is possible to not have a final word on the constitutionality of a piece of legislation.

Stripping jurisdiction from the Supreme Court and lower federal courts also does not get the job done. If the Supreme Court and lower federal courts are prohibited from hearing a case, the final word is left to the highest court in each of the fifty states.

If Congress strips jurisdiction from all federal and state courts, litigants will not have the ability to have their case heard anywhere. This might satisfy Congress’ desire to shield legislation from court invalidation, but it is hard to argue that such a situation encourages greater democratic accountability. In fact, the opposite is true. Prohibiting citizens from having their day in court largely removes democratic accountability from the equation.

In addition, jurisdiction-stripping is not as simple as including language in a piece of legislation that prohibits one or more courts from hearing cases involving that legislation. The following two paragraphs from the Presidential Commission on the Supreme Court of the United States report explains why jurisdiction-stripping language in a piece of legislation might not accomplish what its authors in Congress hope to accomplish:

“If Congress were to withdraw the appellate jurisdiction of the Supreme Court over a class of cases—such as those challenging the constitutionality of a wealth tax or of prohibitions against abortion—while allowing such challenges to be litigated in other courts, including federal district courts and courts of appeals, challengers would likely argue that the restriction overstepped congressional power under the Exceptions Clause by precluding the Court from performing a function essential to its status as the nation’s ‘one supreme Court.’ The argument would be that the Court is deprived of an aspect of its ‘supreme’ status when it is denied the opportunity to pronounce authoritatively on a justiciable issue with respect to which the decisions of lower courts may diverge and might even (from the Court’s perspective) err egregiously. Proponents of this argument could acknowledge Congress’s authority to withdraw rights to de novo appellate review by the Supreme Court, but insist that the Court must retain some minimal capacity to correct clear lower court errors—capacity that traditionally existed through ‘discretionary writs, such as mandamus, habeas corpus, and prohibition.’

“When the Supreme Court confronted a statute that deprived it of appellate jurisdiction over a narrow class of court of appeals decisions in the habeas corpus case of Felker v. Turpin, the Court upheld the statute, but it emphasized—as it had more than a century earlier in Ex parte McCardle—that it retained jurisdiction to oversee the courts of appeals by entertaining original applications for the writ. As a result, there appears to be no squarely on-point precedent deciding whether Congress could more categorically strip the Supreme Court of all jurisdiction over a particular issue or set of issues that the lower courts could continue to decide. Perhaps the only clear conclusion is this: A total preclusion of all opportunity for Supreme Court oversight of lower court decisions involving specific issues, statutes, or policies would run a greater risk of judicial invalidation than a less-than-total preclusion.”

Considering the existence of the Exceptions Clause, it is certain that Congress has the capacity to restrict the Supreme Court’s jurisdiction if it chooses to do so. However, the precise scope of that power is undetermined. Likewise, there are no authoritative cases and no consensus among scholars on Congress’s ability to strip all federal courts of jurisdiction in a specific category of cases. Stripping jurisdiction from all courts—federal and state—would certainly raise constitutional challenges and would assuredly have serious unintended consequences.

Any legislation targeted at stripping the Supreme Court’s ability to resolve specific constitutional issues would likely trigger constitutional challenges. Depending on the specific form the jurisdiction-stripping legislation takes, the Supreme Court could conceivably find some of the possible challenges to the legislation to have merit. The more the jurisdiction-stripping legislation provides for “alternative avenues for judicial enforcement,” the more likely it is to be found constitutional. In other words, if the jurisdiction-stripping legislation allows lower federal and/or state courts to hear cases, the more likely the legislation will survive constitutional challenges. However, allowing lower federal courts and/or state courts to hear cases makes it less likely that Congress will be able to shield the legislation in question from being invalidated.

Discussion: Most people accept, without much thought, that the legislature passes laws, the executive enforces those laws, and the judiciary hears disputes involving those laws. They also accept that the Supreme Court, as the nation’s apex court, has final say on the constitutionality of any legislation passed by Congress. It seems unreasonable to most people that Congress could potentially avoid invalidation of a piece of legislation simply by removing the Court’s jurisdiction to hear the case.

I have a certain amount of sympathy for those that complain that the Supreme Court is acting as an obstacle to greater democratic accountability. The Court has increasingly invalidated legislation in recent years as unconstitutional. Proponents of jurisdiction-stripping believe that power should be transferred from the courts to Congress, where the members are popularly elected and can be held more accountable than can the nine unelected, lifetime members of the Supreme Court.

Even so, jurisdiction-stripping seems like too blunt of a weapon to use to solve the problem. In fact, if the goal is to make the government more democratically accountable, I’d say specific-issue-jurisdiction-stripping makes things worse. Disallowing the Supreme Court, or lower federal courts and/or state courts, from hearing a certain category of cases may protect the legislation at issue from court invalidation, but it fails to protect the people impacted by the legislation.

Keeping in mind that the main purpose of any court reform should be to maintain and strengthen the legitimacy of the Court, I would argue that jurisdiction-stripping would, at best, be a wash, and there is a good chance that it would make the Court’s legitimacy crisis even worse. For that reason, I do not think specific-issue-jurisdiction-stripping would be a positive reform.

Proposals for Supermajority Rules or Deference Rules

In order to properly consider proposals to implement either supermajority voting requirements or a deferential standard of review, let me offer a fictional narrative:

Let us suppose that Congress passes a bill designed to bolster law enforcement initiatives throughout the country. Although it is unlikely in today’s political climate, let’s assume that the bill passes the House of Representatives 435-0 and the Senate 100-0. Because it’s such a popular bill, the President happily signs it into law.

One section of the new law states that citizens can photograph or make videos of police officers while on-duty, but those doing so can not interfere in any way with the police carrying out their duty. A few days after the law goes into effect, a police officer pulls over a vehicle in a national forest near a sleepy little town in Wisconsin. The traffic stop takes place on the outskirts of town late at night near a closed ranger station. As it turns out, the car being pulled over is driven by the new boyfriend of the police officer’s ex-wife.

The police officer roughly pulls the driver out of the car and proceeds to beat him with his fists and a wooden baton. When the officer is finished, the beaten man is left in a heap next to his vehicle. The officer returns to his police car and drives away, leaving the beaten man lying in the roadway, where he is later discovered dead from blunt force trauma to the head.

Because the murder occurred on government land, the FBI investigates and is unable to find any witnesses. However, when they recover the video security tape from the ranger station, they learn that it was a local police officer who committed the murder. The FBI arrests the local police officer, and the case goes to trial.

Although there is some circumstantial evidence pointing to the police officer as the murderer, the strongest evidence against him is the videotape from the ranger station. At his trial, the police officer contends that the video recording violates his constitutional right to privacy, and because of that, claims that the new law that allows him to be videotaped while on duty is unconstitutional. The Federal District Court for Western Wisconsin in Madison finds that the new law is constitutional and rules against the police officer. As a result, he is convicted of the murder. The officer appeals his case to the Seventh Circuit Court of Appeals in Chicago where a three-judge panel unanimously affirms the district court’s ruling.

The officer is nothing if not persistent. He again appeals, this time to the United States Supreme Court. The Court agrees to hear the case. Surprisingly, in a 5-4 decision, the Supreme Court sides with the police officer and finds that the video recording violated the officer’s right to privacy, and they strike down the new law as unconstitutional.

In fairness, this scenario may not be completely realistic, but it does serve to make the point I want to make. Under current Court rules, it is possible for 535 Congressional legislators, the President, four federal judges, and four Supreme Court Justices to find a law constitutional, but they can all be overruled by just five Supreme Court Justices.

Supermajority Voting Requirement

By tradition, the Supreme Court decides cases by a simple majority vote of the Justices. Neither Article III of the Constitution nor any of the various Judiciary Acts dating back to 1789 directly mandate how Court cases should be decided. Even so, from the very beginning of the Court until today, a simple majority vote of the Justices has been sufficient to render its rulings.

Over the years, there have been a few proposals calling for a supermajority vote of Justices in order to invalidate federal legislation. One of the more recent, a proposal from 1967, involved rulings invalidating both state and federal law. It read in part:

“The Supreme Court may not in any case hold that any provision of an Act of Congress, and Act of the legislature of any State, or a constitution of a State is invalid because it violates a provision of the Constitution of the United States unless at least six Justices of the Supreme Court concur in the holding.”

This language is fairly typical of proposals for a supermajority requirement in cases involving potential invalidation of federal and/or state law. The principal goal of such a proposal is to require broader agreement of Supreme Court Justices to find a law unconstitutional than is required today. According to Yale history professor Samuel Moyn, proponents of a supermajority requirement feel that not enough deference is given to lawmakers by a Court that “is too prone to overturning laws and thwarting the outcomes of the democratic process.”

 Opponents of a supermajority requirement believe that the Court provides a countermajoritarian check on the political branches and requiring a supermajority vote to invalidate acts of Congress weakens that important and necessary check. They also feel that a supermajority requirement would shift too much power to Congress, weakening separation of powers and the structures of federalism laid out in the Constitution.

Deferential Standard of Review

Some skeptics who oppose a supermajority requirement nonetheless believe that the Court is too prone to invalidate federal legislation. Although they oppose a supermajority requirement, they prefer implementation of a deferential standard of review in constitutional cases. The deferential standard of review would most likely be implemented by statute that requires that federal courts cannot invalidate legislation except in case where the Court concludes that it is clearly unconstitutional.

A deferential standard of review, although similar to a supermajority voting requirement, would operate differently. Rather than requiring six Justices to invalidate a federal law, a deferential standard of review would require Justices to adjust the way they evaluate a case, requiring them to find that a statute or executive action “clearly” violates the Constitution before invalidating it.

Although a deferential standard of review would be easier to adopt, it would likely be less effective in shifting power away from the courts than a supermajority voting requirement. However, like a supermajority voting requirement, it could lead courts to reach decisions on cases by interpreting statues narrowly rather than making broad legal pronouncements.

Discussion: A supermajority voting requirement is considered a “hard solution” to the problem of judicial overreach. It makes a requirement of the Court that cannot easily be skirted. A deferential standard of review, on the other hand, is a “soft solution.” It is easier for the Court to ignore the requirement, but harder to detect that the standard is being ignored. Because of this, I support the supermajority voting requirement.

In addition, it just seems right to me that a supermajority of the court should agree before invalidating an act of Congress or Executive action. After all, both Congress and the President are required to act within the bounds of the Constitution, and their actions should be given deference by the Court. I am a strong believer in separation of powers and constitutional checks and balances, but I feel that allowing five unelected Justices—a simple majority—to overturn the acts of democratically elected legislators or the President is too low a bar. Shifting some of the power away from the court to the democratically elected branches is the right thing to do.

Proposals to Enable Legislative Overrides of Supreme Court Decisions

In the case of Marbury v. Madison (5 U.S. 137), Chief Justice John Marshall wrote “it is emphatically the province and duty of the judicial department to say what the law is.” Although it’s likely that Marshall was only referring to the authority of the Court to refuse to give effect to legislation or Executive mandate, his line from Marbury has been used in more recent times as support for the idea of “judicial supremacy.”

The concept of judicial supremacy is the belief that the Supreme Court has the last word when it comes to interpretation of the Constitution. Further, judicial supremacy binds the parties in the case as well as the President, Congress, and the states. Marshall may not have been promoting the idea of judicial supremacy in Marbury, but the Court has been embracing the idea at least since the 1950s.  Even so, the Court’s authority to interpret the Constitution and be the final word, foreclosing the other branches from their own interpretation, is far from a settled matter.

Justice Marshall v. Judge Gibson

Before we analyze the concept of a Constitutional amendment that would allow Congress to override a Supreme Court decision, it is worth considering the words of Judge John Gibson, a Pennsylvania Supreme Court judge who served that Court from 1816 until his death in 1853. Unlike Justice Marshall, Judge Gibson did not believe the Constitution gave the Supreme Court the power of judicial review, and twenty-two years after Justice Marshall wrote the majority opinion in Marbury v. Madison, Judge Gibson wrote a dissenting opinion in Eakin v. Raub (12 Sargeant & Rawle 330) (PA 1825).

The opinion did not receive much attention at the time it was written but has become much more popular over the years. In a nutshell, Judge Gibson’s dissent in Eakin can be thought of as a rebuttal to the argument Marshall made in Marbury.

Justice Marshall, while conceding that the Constitution does not explicitly give the Court the power of judicial review—in other words, the power to rule on the constitutional appropriateness of a law—he nonetheless argued that judicial review is necessary to preserve a written constitution as superior to all other legislative acts. Without the power of judicial review, Marshall argued, the legislature could amend the Constitution by passing laws rather than going through the intentionally onerous amendment process.

Gibson disagreed, saying a constitution may be better preserved by the citizens, and not the courts. For Gibson, it was up to the people to do away with any legislation that offends the Constitution by instructing their representatives to repeal the offending law. Any powers not expressly granted by a constitution to the government remain with the people, who Gibson reasoned are the ultimate sovereigns in a democracy. He admitted it might be wise for the courts to have the power of judicial review, but he concluded that the Founding Fathers chose a different path, thus limiting the power of the Court, denying it the power of judicial review.

Judge Gibson also felt that Justice Marshall’s theory of judicial review elevated the judiciary above the legislative branch, contrary to the text of the Constitution. “But it will not be pretended that the legislature has not at least an equal right with the judiciary to put a construction on the constitution; nor that either of them is infallible; nor that either ought to be required to surrender its judgement to the other.” For Marshall’s view of judicial review to hold, the legislature must surrender its judgment to the judiciary, something Gibson felt the Constitution did not countenance.

In Gibson’s view, based on the development of common law in the courts, it is the court’s job to interpret the law, not examine the authority of the lawmaker. He concluded that “it rests with the people, in whom full and absolute sovereign power resides, to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act.” (Eakin v. Raub)

I offer this brief glimpse into the history of judicial review as a reminder that, although Justice Marshall’s view of the matter carried the day, it was not the only opinion on the matter at the time, and by no means was the power of judicial review a forgone conclusion for our courts. Today, judicial review is a widely accepted part of the role played by the judiciary. However, it did not have to be that way. Many legal observers, both in the past and present, find that Judge Gibson’s reasoning is sound and better supported by the Constitution than Justice Marshall’s approach.

A History of Proposals to Enable Legislative Overrides

A few times throughout the country’s history, the idea of creating an amendment to the Constitution that would allow Congress to override a Supreme Court decision has been broached. For instance, in 1924, Sen. Robert LaFollette (R-WI) and Sen. Burton Wheeler (D-MT), running as President and Vice-President respectively on the Progressive Party ticket, proposed “a Constitutional amendment providing that Congress may by enacting a statute make it effective over a judicial veto.” The amendment would have given Congress the ability to override Supreme Court cases it disagreed with and would have given Congress the final word on constitutional interpretation.

Senator Wheeler, who returned to the Senate following his and Sen. LaFollette’s loss in the 1924 Presidential Election, teamed up with Sen. Homer Bone (R-WA) in 1937 to propose a variation on the earlier proposal. Wheeler and Bone proposed a Constitutional amendment that gave Congress the power to override Supreme Court decisions by a two-thirds majority of the House and Senate. Wheeler, a strong supporter of President Franklin D. Roosevelt, saw the Constitutional amendment as a preferred option to Roosevelt’s Court packing plan. However, like the Court packing plan, Wheeler and Bone’s proposal also failed.

The idea of giving Congress the ability to override a Supreme Court decision came up again in 1996 in an essay written by legal scholar Robert Bork. Bork argued that the “most important moral, political, and cultural decisions affecting our lives are steadily being removed from democratic control.” He proposed a Constitutional amendment that would give Congress the power to modify or reverse a Supreme Court decision with a simple majority vote of the House and Senate. More recently, liberal scholars have expressed support for the conservative Bork’s essay and proposal.

Proponents of legislative overrides believe that the Court exercises undue power over major social, political, and cultural issues. They contend that decisions on these important issues should more properly be resolved through the democratic process. For critics of the Court’s “final say” power, the Supreme Court’s countermajoritarian nature is in constant tension with the constitutional underpinnings of democracy.

Advocates for a Constitutional amendment giving Congress the power to override Supreme Court decisions also believe that such a Constitutional amendment would strengthen the system of checks and balances. In addition, they believe that the power of the legislative override would place the final say on the constitutionality of a given law in the hands of the people’s representatives, who are subject to the political process.

Opponents of legislative overrides of Supreme Court decisions point out that doing so transfers power, not so much to Congress as it does to lower courts. Decisions made by lower courts, except in limited situations, are not automatically guaranteed an appeal to the Supreme Court. So, if a lower court strikes down a law as unconstitutional, and the Supreme Court does not grant certiorari, under the Constitutional amendments discussed, Congress will be powerless to act. Opponents also point out that a legislative override threatens federalism, by Congress using its override power to favor its own power over state’s rights.     

Discussion: Although I sympathize with some of the points raised by proponents of legislative override, a Constitutional amendment to shift power from the Court to Congress is a bridge too far for me. Often, the Court favors power elites over normal citizens, and it would be nice to know that following an adverse decision in the Court, there was a mechanism that allowed Congress to right a wrong committed by the Court. However, giving this power to Congress also opens up the possibility of the legislative branch further violating the Constitution following a Court decision striking down an offending law.

Proponents of a legislative override claim that the decision made by the Court on constitutional issues are better left to our elected representatives, who are more accountable to the people. To me, this is the strongest argument against legislative overrides. I want a sober, deliberative body to make the final decision on the constitutionally of our laws, not a passionate, reactive body that often makes decisions in the heat of the moment more conducive to the continuation of their political careers than the good of the country.

Of the reform proposals discussed in this chapter, the proposal to require a supermajority vote of Justices in constitutional cases is the only one that accomplishes the goal of making the Court more accountable without creating other unintended consequences. I would support the supermajority voting requirement but would not be in favor of reforms proposing jurisdiction stripping, deferential standards of review, or legislative overrides.



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