Presidential Commission on the Supreme Court of the United States
Justice minority that controls the outcome of the case under the supermajority requirement? The greater precedential weight given to the minority’s opinion, the greater the level of deference produced by the new supermajority requirement. These issues are novel, as far as we can tell, for U.S. law. Past practice with supermajority voting at the state level is too sparse to establish a clear model for judicial decisionmaking. As noted, other countries with supermajority voting requirements for their highest court apply their rules without substantial difficulty, but these systems are often procedurally distinct from the U.S. system, particularly in terms of appellate structure.[103]
Second, Congress might consider extending a supermajority voting requirement to lower federal courts or state courts in addition to the Supreme Court. As noted, this extension would not change current practice for lower federal courts apart from en banc hearings. Most state supreme courts use majority voting, but their cases generally involve state law rather than federal law, so the effect (assuming it applied only to decisions under the U.S. Constitution) would not be wide-reaching.
A supermajority voting requirement applied only to the U.S. Supreme Court (or to all federal courts) might have the incidental effect of empowering state courts. Even if Congress extended a supermajority voting requirement to state supreme courts when they decide federal constitutional questions, state courts would still remain free to decide the constitutionality of state laws under their state constitutions, which often contain guarantees that parallel the federal Constitution.[104] These state-law guarantees would likely increase in importance if courts were constrained in their authority to decide under the federal Constitution (assuming the supermajority vote requirement applies only to federal constitutional questions). As discussed in connection with jurisdiction stripping, it is not necessarily preferable to have state courts substitute for federal courts in constitutional review of state lawmaking.
Third, in designing a supermajority voting rule, Congress also would need to consider to which laws or actions it would apply. Supermajority voting requirements could be imposed for review of (a) only federal legislation; (b) federal legislation and federal executive actions; or (c) all federal and state lawmaking. The reduction in judicial influence vis-à-vis the other branches of government would vary in step with the reach of the supermajority voting requirement. Simply put, the more actions to which the supermajority voting requirement applied, the greater the shift in influence to other institutions such as Congress, the Presidency, and state legislatures.
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