Is That Legal?

Interesting. I believe Judge Bork has advocated the same amendment in his book, The Tempting of America.

Prof. Muller writes:

"I 'm reading Peter Irons' "The New Deal Lawyers" ...In his chapter on FDR's court-packing plan, he includes a detail that I'd never heard: a rival plan developed (but then abandoned) in the Justice Department would have had the Congress and the States ratifying an amendment to the Constitution to permit Congress to override Supreme Court decisions by a two-thirds vote. A milder version of the same idea would have allowed supermajority Congressional overruling only of Court opinions decided by 5-4 or 6-3 margins. It's interesting to wonder whether such a proposal would have been received with the same degree of hostility as the plan the President ultimately proposed."

And John Stuart writes:

"Interesting. I believe Judge Bork has advocated the same amendment in his book, The Tempting of America"

The amendment plans WERE apparently received with an equal degree of hostility. Bork certainly never advocated any of them. According to Bork in "The Tempting of America," Senator LaFollette proposed the two-thirds Congressional vote plan and others proposed variations on the LaFollette plan but "Almost all such attempts have proved fruitless...the difficulty with all proposals to respond to the Court when it behaves unconstitutionally is that they would create a power to destroy the court's essential work as well...unpopular proper rulings may as easily be overturned as improper ones. There is, after all, no reason to think that over time the Senate will be a more responsible interpreter of the Constitution than the Court" [P.53 Bork- "The Tempting of America."

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At the most recent "Justice Sunday", William Donohue of the Catholic League, said something similar: "We need a discussion, do we need a Constitutional amendment which would say this: no act of Congress can be overturned by the Supreme Court unless it's a unanimous decision. That'll stop judicial activism right in its track." (Heard it on NPR, found it here. Got big applause.)

Hah. I did not know that. Instead, I arrived independently at the same conclusion.

Requiring a supermajority of both houses would be effectively the same as passing a constitutional amendment. Which is the only OTHER way to overturn a constitutional amendment. So yes, they might 'overturn the vital work of the court' of something, but they can do that already.

The original system was not designed to have the Supreme Court functioning as the sole arbiters of the constitution. In fact, I don't think they really had in mind having the court arbitrate constitutionality at all. The distinction here, 'twixt me and say Antonio Scalia, is that I am fine with the court system operating as arbiter of constitutional disputes. I don't want to return to an embalmed 'careful' interpretation of the actual text of the document that allows any form of state power that wasn't prohibited by Hamilton hisownself. (I differ from the living constitution people in that I want the actual text to be abided by.)

Anyways, my notion was to upgrade the Electoral College into a separate (elected!) house, functioning during a limited period of time, that would 1> perform the Electoral College function, with the change that they would settle the issue one way or the other, rather than having it pass to Congress, 2> be allowed to reject obnoxious Supreme Court dicisions via supermajority 3> have the limited right to regulate the election of congressmen and approve congressional pay raises. In addition, I would allow them to form a separate route for the approval of amendments before they were sent to the states, function as the constitutional convention in the unlikely event Congress called for one, and function as the backup to Congress should Congress be destroyed or unable to function until such time as new elections could be held.

Congress would in turn regulate salaries and elections for the new house, and the President would pick the Speaker (Chairman, President) who would have the power to call and dismiss the new house.

ash
['It's a thought!']

David Weigel writes, “a Constitutional amendment which would say this: no act of Congress can be overturned by the Supreme Court unless it's a unanimous decision.” That’s quite a frightening thought were it to be realized, as I’m sure you know. And yet, while it’s certainly not likely to happen, the mere threat of such limitations has worked in the past. To bring it back to Eric’s post, the New Deal "court packing" plan, for example (despite being rejected), actually achieved the goal of limiting the instances of the Supreme Court's use of its check on Congressional power through good ol’ American intimidation (Feinman). It’ll be interesting to see if today’s rhetoric has a similar impact.

"The New Deal 'court packing' plan, for example (despite being rejected), actually achieved the goal of limiting the instances of the Supreme Court's use of its check on Congressional power through good ol’ American intimidation."

Perhaps. But the details of the so-called "Revolution of 1937" are little more complicated than that, and the change in SC rulings may not have been related to the court-packing scheme. There remains a historical debate over what role, if any, the court-packing plan (or FDR's landslide re-election win) had on the New Deal decisions that took place post-1936. There is a decent amount of evidence which questions the traditional cause-and-effect interpretation asserted above by Matt Lawless.

And then there's the (absurdist? comical? serious?) approach that Owen Roberts supposedly took to the whole controversy. Owen Roberts was one of the justices who mysteriously started changing his New Deal-case votes in 1937 and thus is one of the keys to understanding what changed. Roberts said: "Who knows what causes a judge to decide as he does? Maybe the breakfast he had has something to do with it."