From time to time the Supreme Court is the main topic of one of my articles. Today is such a day. Theoretically we have three co-equal branches of our federal government with the Judiciary, led by the Supreme Court, being one of them. I am among the many who feel the Court is much to powerful and largely unchecked. Various ideas about how to harness them in a bit are often floated. I want to discuss an interesting one I heard the other day.
Much of how the Court operates and in fact much of the scope of its authority has simply developed over time. Little is inscribed in the Constitution. One of the most impactful things the Court can do is overturn precedent. Today the left is in fear that the current Court will soon overturn Roe v Wade. As of this writing, they have at least temporarily partially overturned it.
In the opinion of some constitutional scholars Congress could enact a statute (which I’m certain Biden would sign) requiring a supermajority to overturn an existing ruling. With today’s nine justice (that number is simply evolved tradition and not mandated by either the Constitution or statute) that would mean they would need six votes. I feel the right wing has the votes of five justices (Alito, Barrett, Kavanaugh, Gorsuch and Thomas) in their pockets. Chief Justice John Roberts is no liberal but I think he has more respect for the Constitution than the other five. History will also view the current Court as his Court so he cares more about how history views its decisions. A supermajority requirement would be less than a sure thing and I feel Roberts would be more apt to stand his ground if he wasn’t fighting a losing cause.
Down the road this rule might actually hurt liberals in a future Court with a much different configuration. So be it. More importantly it would make it much more difficult to willy nilly change things. All markets, economic and otherwise, detest instability.
Getting such legislation enacted and upheld is the real fly in the ointment. With today’s makeup of Congressional delegations I can’t see this getting passed. If somehow it did, I see court challenges which would end up before the Supreme Court. Am I the only one who is skeptical that the five radical right wing justices (I refuse to call them conservatives – I have too much respect for that term) would put America and the Constitution ahead of their interests and constrain their power?
The idea has merit. Perhaps some day it can be enacted as part of a package of modernizations/reforms. Remember it.
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