lawmaking process and its various institutions currently operate. Evaluating these proposals will hinge in large part on one’s view of the relative abilities of courts and legislatures to protect constitutional rights. Whatever one’s perspective on this question, which we do not purport to answer, we think it useful to offer observations concerning the likely effects of a supermajority voting requirement for the Supreme Court.
We believe that supermajority voting requirements are likely to achieve at least some of the effects intended by proponents. Supermajority voting may shift authority over constitutional questions marginally away from the Supreme Court and toward other government actors by reducing the likelihood that the Court would find actions of the political branches unconstitutional. But supermajority requirements also would bring with them their own potential costs, and it is uncertain that greater “correctness” would result from supermajority voting in the absence of agreed-upon criteria for differentiating correct from incorrect decisions.[102] The extent of success would depend on how the supermajority voting requirements were imposed, and the general idea of supermajority voting gives rise to some specific implementation challenges, particularly given the wide range of cases that come before the Court in varied procedural posture. Below, we highlight a few of the many complications that might arise.
First, a supermajority requirement would complicate the Supreme Court’s supervision of the courts of appeals. Though a full accounting of these technical issues would be too extensive to analyze in detail here, it is important to consider what the weight of a 5–4 decision of the Supreme Court would be in a world where a 6–3 decision is required to find a statute unconstitutional. Imagine that the Supreme Court votes 5–4 to affirm a lower court decision that invalidated a federal law on constitutional grounds. What happens to the constitutional challenge? The 5–4 vote falls short of the requisite supermajority needed to find unconstitutionality, so does the Court’s decision amount to a decision to reverse the lower court judgment invalidating the statute? We would assume so, given that the principal motivation for the supermajority rule is greater judicial deference to the political branches. The alternative, in which the lower court decision is undisturbed, would not actually promote judicial deference; it would only shift power from the Supreme Court to the lower courts.
But this disjunction between the majority of judges who have heard a case and concluded that a law is unconstitutional and the legal outcome of the case dictated by the supermajority voting requirement could cause confusion for subsequent courts that must interpret the doctrinal meaning of those cases. Should courts follow the reasoning of the majority of Justices in the 5–4 case, or disregard the majority opinion and instead follow the reasoning of the four-
