Page:EO 14023 Commission Final Report.pdf/202

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Presidential Commission on the Supreme Court of the United States
  1. ↑  The relevant articles include Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 271–72 (1985); Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443, 487 (1989); Akhil Reed Amar, Reports of My Death Are Greatly Exaggerated: A Reply, 138 U. Pa. L. Rev. 1651, 1673 (1990); and Akhil Reed Amar, Taking Article III Seriously: A Reply to Professor Friedman, 85 Nw. U. L. Rev. 442, 445 (1991).
  2. ↑  See Daniel J. Meltzer, The History and Structure of Article III, 138 U. Pa. L. Rev. 1569 (1990); John Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III, 64 U. Chi. L. Rev. 203 (1997); William A. Fletcher, Lecture, Congressional Power over the Jurisdiction of Federal Courts: The Meaning of the Word “All” in Article III, 59 Duke L.J. 929 (2010).
  3. ↑  See, e.g., Meltzer, supra note 77, at 1575.
  4. ↑  Evan Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rules: Lessons from the Past, 78 Ind. L.J. 73, 88 (2003); Id. at 117 (appendix listing proposals).
  5. ↑  H.R. 379, 40th Cong. (1868).
  6. ↑  S. 4483, 67th Cong. (1923).
  7. ↑  H.R. 11007, 90th Cong. (1967).
  8. ↑  Caminker, supra note 79, at 83.
  9. ↑  See Moyn Testimony, supra note 2, at 6 (discussing the post-Civil War era); Steven F. Lawson, Progressives and the Supreme Court: A Case for Judicial Reform in the 1920s, 42 Historian 419, 420 (1980) (discussing Senator Borah’s Court reform efforts).
  10. ↑  N.D. Const. art VI, § 4; see Caminker, supra note 79, at 91 (noting that this supermajority voting rule was originally adopted in a 1919 amendment).
  11. ↑  Neb. Const. art. V, § 2; see Caminker, supra note 79, at 92–93 (noting that this supermajority voting rule was originally adopted in a 1920 amendment).
  12. ↑  Jed Handelsman Shugerman, A Six–Three Rule: Reviving Consensus and Deference on the Supreme Court, 37 Ga. L. Rev. 893, 955–56 (2003).
  13. ↑  Ohio Const. art. IV, § 2 (amended 1968); see Caminker, supra note 79, at 91–92 (discussing difficulties motivating the elimination of the requirement, including inconsistent caselaw between circuits and confusion surrounding the precedential status of certain decisions); Shugerman, supra note 87, at 956–62 (same).
  14. ↑  Presidential Commission on the Supreme Court of the United States 2 (Sept. 21, 2021) (written testimony of David Law, University of Virginia Law School) [hereinafter Law Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/09/Professor-David-Law.pdf (citing Eric Yik Him Chan, Judicial Review and Supermajority Voting Rules (May 2019) (L.L.M. thesis, University of Hong Kong, Faculty of Law), https://www.whitehouse.gov/wp-content/uploads/2021/09/Professor-David-Law-appendix.pdf)). The cited thesis lists eleven countries with supermajority voting requirements in their highest constitutional court as of 2019; this includes Taiwan, which has switched to majority voting effective in 2022. Chan, supra, at 13. In addition, a number of countries require an absolute majority of the entire court, as opposed to a majority or plurality of voting justices, and a few countries have supermajority requirements for decisions in particular subject matters. See Chan, supra, at 51–60; Law Testimony, supra, at 3.
  15. ↑  Joon Seok Hong, Signaling the Turn: The Supermajority Requirement and Judicial Power on the Constitutional Court of Korea, 67 Am. J. Comp. L. 177, 194 (2019).
  16. ↑  Id. However, many of these courts—including in South Korea—hear principally or exclusively constitutional claims and do not generally hear cases on appeal from lower courts. Therefore, it is not clear whether their experiences readily translate to the U.S. Supreme Court, which hears statutory as well as constitutional cases and typically reviews decisions of lower courts.
  17. ↑  See, e.g., Anthony Harrup, Mexico’s Top Court Sets Back President’s Plans for State Power Company, Wall St. J. (Feb. 3, 2021, 3:42 PM), https://www.wsj.com/articles/top-mexico-court-rules-electricity-rules-favoring-state-utility-are-unconstitutional-11612381067.
  18. ↑  Shugerman, supra note 87, at 893–94.
  19. ↑  Id. at 899–931; see id. at 906 (referring to an “explosion of five-to-four decisions invalidating acts of Congress”).
196 | December 2021
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