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September 22, 2006

3/5ths Congressional Override of the Supreme Court?

Talking with Rob, we got into a sort of theoretical discussion about Supreme Court power. I brought up the fact that there was a radical asymmetry in what was needed for the Supreme Court to create law of its own volition; they merely needed five unelected judges to create law. On the other hand, to overturn a Supreme Court decision, a much more difficult hurdle had to be jumped: a two-thirds vote in both houses of Congress and a 3/5ths majority of all states, acting through their legislatures.

Compare this with the Presidential veto/Congressional override scheme. Congress may pass a bill with one half (plus one) of each house. The President may veto the bill-- but a two-thirds vote by both houses of Congress overrides the veto. Now, a two-thrids vote in both houses of Congress is a hard row to hoe, but it is doable, at least in cases of the most unpolular Presidential vetoes.

There isn't a radical asymmetry between what is needed to block legislation and what is needed to overcome that blockage. An asymmetry, yes, but not a wildly disproportionate one.

In the case of the Supreme Court, anything that five unelected, appointed for life judges decide is the law is the law, and remains so in perpetuity, for all practical purposes. The Amendment process is very difficult (by the Framers' design), but the Supreme Court has arrogated to itself the power to amend the Constitution by a fairly easy mechanism. Five votes.

Why is there nothing in the Constitution similar to Congress' power to override the President's veto? Why is it not spelled out that Congress may override the Supreme Court with, say, a three-fifths (or two-thirds) vote in both houses?

Because, as Rob mentioned, the power of the Supreme Court to overrule the decisions of the political branches of government is nowhere in the Constitution at all. It was asserted by John Marshall in Marbury v. Madison, he himself deciding that, if the nation were ruled by a charter, and the courts were especially competent to interpret that charter, well then, by implication, the Court had the power to overturn legislation and executive actions which the Court believed were in violation of that charter.

But this is assumed authority by the Court. One the nation has acquiesced in, but assumed authority nevertheless.

As the Framers did not seem to ever contemplate the Court having such an enormous power -- a five-man veto over the any law passed in the United States, whether by the US Congress or any state legislature -- it's hardly surprising they didn't build into the Constitution a reciprocal, symmetrical override power to veto the veto. Having not planned on the Court having such power in the first place, they never contemplated the political power to check the Court's power.

You don't invent an umbrella if you never imagined the possibility of rain.

Now, this is all very theoretical and perhaps silly -- given that this is such a big step that no one at all is discussing -- but perhaps it's time for the Constitution to catch up with the Court's self-granted power of reviewing all legislative and executive action by amending the Constitution to provide for a 3/5ths congressional override of any Supreme Court decision. If we have a system of checks and balances -- or rather checks and counter-checks, as the veto/override pairing provides an example of -- where, precisely, is the counter-check on the Supreme Court? The Supreme Court has a check on the political branches, but where, precisely, is the political branches' counter-check?

If the Supreme Court can nullify any congressional or presidential action, doesn't the symmetry of check and counter-check suggest that Congress should have the power to in turn nullfy a Supreme Court decision?

A silly idea that can go nowhere? Well, another silly idea -- abolishing the Electoral College -- has got an awful lot of press, and some degree of traction. Not enough to actually pass the congress, let alone 3/5ths of the state legislatures, but there is a live political movement for this dubious "reform."

Why not reform, and clarify, the power of judicial review? As currently configured -- according to rules of the Supreme Court's own fancy -- the Supreme Court is pretty much the ultimate political power in the country, with no limitations on its power or jurisdiction (save for its ever-dwindling reserve of self-restraint), with only the well-nigh-impossible Amendment process to check and balance it. Does that make any sense? Should the Court have such a potentially limitless power, without even a single clause of the Constitution hinting at such, with the political branches having no reciprocal power to balance the Court?

When John Marshall announced this heretofore unexpected power of the Court, he conveniently forgot to mention any counterveiling power of the Congress to check it. I guess it just slipped his mind.

But that hardly means it should slip ours.

Eh. Kind of interesting, I think. And doable, though difficult, if enough people actually militate for such a change.


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posted by Ace at 04:35 PM

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