would still leave extensive power in the lower federal courts and the state courts. Because the U.S. Supreme Court is under no obligation to grant certiorari after a lower court or state court rules a federal statute unconstitutional, a legislative override system that did not empower review of lower court decisions striking down federal statutes would leave such decisions more insulated from democratic review than similar decisions of the Supreme Court. This problem is soluble, however, by enabling overrides of lower court or state court decisions, as well as Supreme Court decisions, on federal constitutional grounds.
Finally, some observers question whether legislative overrides are the best way to achieve the ends that their proponents desire. A better approach, they argue, would be to change Article V of the Constitution, making the Constitution easier to amend. Changing the Constitution through amendment, these critics contend, produces more reasoned democratic deliberation; in contrast, overrides are too tied to particular controversies. The Commission notes that there may well be sound arguments for making the Constitution easier to amend. However, because such substantial reform to the Constitution is outside the scope of this Commission’s mandate, we do not consider this proposal. In addition, it is worth noting that a system of legislative overrides might have advantages over making the entire Constitution significantly easier to amend. A legislative override process could enable Congress to advance its own constitutional vision, re-enacting statutes that the Court has struck down subject to a temporal sunset or to other limitations, without enabling too-frequent wholesale reforms to the structure of government or the text of the Constitution.
2. Consequences for the Political Process and Legal System
Given that legislative overrides would at least partially achieve the goal of reducing the Supreme Court’s power vis-à-vis the democratic branches, one important concern is whether they might result in insufficient protection of individual rights and, in particular, minority rights. Another concern is that allowing actors other than the Court to determine the constitutionality of statutes might result in less settled law and less well-reasoned constitutional decisionmaking. In addition, some worry that allowing congressional overrides might have implications for federalism, with Congress potentially more likely to use legislative overrides to favor its own power over states’ rights (though some might find that to be an advantage rather than a disadvantage).
Proponents of legislative overrides (and critics of judicial supremacy more generally) respond that, in practice, the Court has not consistently protected rights of underprivileged, politically powerless minorities who lack support from popular majorities; indeed, some argue it has rarely done so.[162] Notably, many scholars observe that parliamentary democracies
