Sunday, October 10, 2021
If the solution is simple, it might not actually be a solution. Last week, another contributor to this blog suggested that a six-vote supermajority rule could help resolve concerns about the Supreme Court being just another political institution rendering political decisions. The suggestion struck me as misguided and ineffective.
In recent weeks, no fewer than four justices have spoken out that they are not, as Justice Amy Coney Barrett put it, “political hacks.” Each made the point that they adhere to a judicial philosophy, rather than carry their political preferences into law. Although I have no doubt that each believes that to be true, the judicial philosophies that each espouses, on many of the hot-button issues that come to the Court, tend to coincide with views of the political party of the president who appointed them, which is why modern Supreme Court nominations generate deep political schisms. To be sure, there are occasional “strange bedfellows,” where the majority line-up includes justices thought to have incompatible philosophies/politics and where the results surprise. Still, most decisions seem to follow political views as much as judicial philosophy so that any distinction that exists appears, at best, a subtle one.
Accusations that the Court is engaged in politics are not new and would not change if a supermajority requirement were adopted. Two of the most important constitutional law decisions issued by the Court, both of which were unanimous, were criticized as political and evinced a political tinge. The dispute in Marbury v. Madison, for example, came out of the political growing pains of a new nation during the first transition of power from one political party to another. The Federalist administration of John Adams tried to seed the judiciary with party loyalists, just as Democratic-Republican Thomas Jefferson was about to take office. In the rush of appointing “midnight judges,” some commissions were not delivered by Secretary of State John Marshall before his successor, James Madison, took office. It was Madison’s refusal to deliver those commissions that resulted in William Marbury’s lawsuit seeking to complete his appointment as a justice of the peace.
The new Congress recognized the case would be decided by Federalist appointees, including John Marshall, himself a midnight judge. It cancelled the upcoming Supreme Court term, delaying the case. When the Court finally heard the matter, it was fully aware of the political stakes involved and how a politically problematic decision would generate retaliation against the Court. As the administration and Congress feared, the Court held Marbury was entitled to his commission. Yet, in a masterful twist, the Court also held it was without authority to provide relief because the congressional authorization giving the Court jurisdiction to issue a writ of mandamus conflicted with the Constitution’s limited grant of original jurisdiction. The Court struck down this extra-constitutional authorization, exercising the power of judicial review. It avoided a confrontation with the Jefferson administration over its power to order the seating of Marbury, while establishing the Court as the venue where the Constitution would be authoritatively construed and laws struck as unconstitutional. The decision was a balancing act that operated to preserve – and, indeed, strengthen – the Court as an institution.
The second landmark foundational case, Brown v. Board of Education, unanimously struck the separate, but equal doctrine. Though it now, deservedly, garners laurels, it generated a storm of criticism at the time, including a massive-resistance movement and Senator James O. Eastland’s declaration that the opinion was a “legislative decision by a political court.” The decision came to be in large part because Chief Justice Earl Warren used his political skills honed as governor of California and the Republican vice presidential nominee before taking the bench to work his colleagues so that a single authoritative opinion spoke for the Court. Similar “political” considerations resulted in the decision in Cooper v. Aaron, signed by each of the justices as though co-authors, to express the Court’s emphatic intolerance of delays in desegregating Central High School.
These decisions did not merely hew to some abstract concept of law existing somewhere only to be found, but recognized the legal questions being answered existed in a political world in which the Court’s authority would be questioned.
Requiring a supermajority vote fails to assure public confidence and respect. It is not the line-up of the vote, but the reasoning and consequences that count. Some of the worst decisions in Supreme Court history boasted overwhelming support among the justices, such as: Dred Scott v. Sandford (7-2, holding that African-Americans could not be U.S. citizens and likely precipitating the Civil War ); Plessy v. Ferguson (7-1, creating the separate-but-equal doctrine); Korematsu v. United States (6-3, upholding the internment of Japanese-Americans during World War II); and, Buck v. Bell (8-1, finding no constitutional impediment to a state law mandating sterilization of those deemed “feebleminded” to prevent future generations from inheriting “bad” genes). In each of these cases, the political considerations were determinative.
The point is that a 6-3 supermajority requirement provides no guarantee that the Court will render decisions divorced from politics – or – decisions that are sounder from some hypothetical purely legal perspective. And a more closely divided Court is no more or less legitimate than one that garners an additional vote or two for its majority.
The proposal aired in this blog specifically argued in favor of at least six votes to affirm or reverse a lower court decision. Without a supermajority, the proposal would let the lower court decision, whether it was made in federal or state appeals courts, stand, even if it were the product of a bare majority on that court or constituted a plurality opinion. Those consequences, however, would produce their own political dynamics – a Supreme Court able to avoid controversy due to a lack of supermajority support for one result or another, disharmony on federal questions across the circuits and state courts so that federal law would be different depending on where a person lived, and, possibly, even summary reversals of decisions disliked by a supermajority without an agreed-upon ratio decidendi, creating uncertainty about what rule of law applies. None of these consequences are more desirable than the current approach.
A supermajority requirement simply would not depoliticize the Court.
 5 U.S. (1 Cranch) 137 (1803).
 347 U.S. 483 (1954).
 358 U.S. 1 (1958).
 60 U.S. (19 How.) 393 (1857).
 163 U.S. 537 (1896).
 323 U.S. 214 (1944).
 274 U.S. 200 (1927).