Presidential Commission on the Supreme Court of the United States
amendment; such a system would clearly enable Congress to declare that, for all parties, “notwithstanding” a court’s interpretation of particular constitutional provisions, a particular statute is permissible, for a defined period of time. However, as discussed above, the broader system may raise other concerns about protection of rights.
D. Conclusion: Legislative Overrides
In short, a constitutional amendment adopting a system of legislative overrides would reduce the power of the Supreme Court over fundamental social questions and would increase the power of Congress. Design of the system might mitigate concerns about rule of law, constitutional structure, and minority rights. However, those design questions are difficult and would require further debate and elaboration, particularly because this reform has attracted less attention than some of the other reforms discussed in this Report. Short of constitutional amendment, some argue that Congress could still do more to resist judicial supremacy, though that, too, would likely face a critical audience from the current Supreme Court. Some proponents of reducing the power of the Court argue that the Court’s commitment to judicial supremacy should not be a concern and that statutory reform to facilitate Congress’s ability to assert its own constitutional authority would be worth trying.[174] Others disagree—not only because they question the legality of congressional non-acquiescence to the Court, but also because resistance to judicial supremacy would mark a substantial shift in contemporary practice, the legitimacy of which would be questionable without constitutional amendment.[175] In any event, further public debate could help flesh out the merits of the various approaches.
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