Presidential Commission on the Supreme Court of the United States
of Congress on the ground of repugnancy to the Constitution of the United States, at least seven members of the court concur before pronouncing said law unconstitutional.[81]
A more recent proposal, from 1967, encompassed rulings against both state and federal law:
The Supreme Court may not in any case hold that any provision of an Act of Congress, an 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 that holding.[82]
Many (perhaps all) of these proposals appear to have been reactions to particular rulings or lines of rulings of the Court, or concerns about particular rulings the Court might issue. For example, in the 1820s, members of Congress were principally concerned about Supreme Court decisions invalidating state laws.[83] After the Civil War, Congress worried that the Court might invalidate Reconstruction legislation or even question the validity of the Fourteenth Amendment itself; in the early twentieth century, Senator Borah and his supporters were reacting to pro-business decisions issued by narrow majorities of the Court.[84]
Although Congress never enacted a supermajority rule for Supreme Court voting, North Dakota, Nebraska, and Ohio each adopted supermajority voting for their supreme courts in the early twentieth century. The North Dakota Constitution provides that the state supreme court “shall not declare a legislative enactment unconstitutional unless at least four of the [five] members of the court so decide.”[85] Similarly, the Nebraska Constitution provides: “No legislative act shall be held unconstitutional except by the concurrence of five [of seven] judges.”[86] A scholarly examination of experience under these provisions suggests that they have not posed significant operational difficulties.[87] Ohio adopted a similar constitutional amendment in 1912, which it repealed in 1968 after experiencing difficulties in practice.[88]
Although majority voting is the most common practice among multimember courts worldwide, a number of high courts outside the United States (including in Mexico and South Korea) operate under a supermajority voting requirement for constitutional adjudication. According to a recent study, at least ten countries have such a requirement, typically imposed in their constitutions.[89] Some of these countries have substantial experience with constitutional litigation under supermajority voting rules. For example, South Korea adopted the current version of its supermajority rule for its constitutional court in 1987, requiring the votes of six
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