approaches adopted in foreign and state courts. It next considers the advantages and potential drawbacks of a supermajority voting rule and assesses the feasibility of particular approaches to implementation, particularly by considering the implications for the lower courts of a supermajority rule at the Supreme Court. It then considers the advantages and drawbacks of reducing the Court’s power by requiring a deferential standard of review. Finally, this Part concludes by examining Congress’s power under the Constitution to impose either type of reform.
A. Supermajority Voting Requirements—Historical and Comparative Context
Proposals for supermajority voting requirements generally focus on the U.S. Supreme Court. Federal district judges preside alone, or on three-judge panels, such that decisions by the district courts are either unanimous or by 2–1 panel vote. Similarly, federal courts of appeals typically preside in three-judge panels, deciding cases either unanimously or by 2–1 panel vote, though when they sit en banc, a supermajority requirement could be applied to change their current simple majority voting practice. Congress might prescribe supermajority voting rules for state courts, but this is an uncommon suggestion and, as discussed below, it may be subject to substantial constitutional objections.
By longstanding practice, the U.S. Supreme Court decides cases by simple majority vote. Neither Article III of the Constitution nor Congress in the 1789 Judiciary Act directly specified how the Supreme Court’s cases should be decided. From the beginning, however, the Court appears to have assumed that a simple majority vote was sufficient to determine its rulings—a conclusion generally consistent with the practices of Anglo-American multimember courts of the time.
The first proposal in Congress for a supermajority voting requirement at the Supreme Court seems to have been made in 1823, and over sixty such proposals have been offered at various times since then.[79] During the Reconstruction Era, the Republican-controlled House of Representatives passed a bill imposing a supermajority vote requirement for invalidating federal legislation, but the Senate did not act on it.[80] In the 1920s, Idaho Senator William Borah made an influential proposal to require that:
in all suits now pending, or which may hereafter be pending, in the Supreme Court of the United States, except cases affecting ambassadors, other public ministers, and consuls and those in which a State shall be a party, where is drawn in question an Act
