Why 5–4?

The Supreme Court should have to work harder if it wants to overturn an act of Congress.

Today I’m going to talk about a potential Supreme Court reform that has not gotten as much attention as term limits, expansion, and ethics rules, but which may be as effective as any of them in putting the Court in its proper place in American democracy: a consensus requirement.

I have been thinking about this reform in the wake of last month’s gut-punch of a ruling in Louisiana v. Callais and its cavalier disembowelment of one of the most significant and consequential federal laws in American history. The aftershocks of the decision continue to reverberate, with Republican legislatures across the South racing to redraw their maps not only mid-decade but literally mid-election, all with the Court’s open encouragement. It’s so brazen that I’ve wondered, if the right-wing justices actually wanted Congress to assert its inherent constitutional powers and rein them in, would they be doing anything differently?

I wonder this because the Voting Rights Act is not your average piece of congressional legislation. The “crown jewel” of the civil rights movement, it was first passed in 1965, triggering immediate and dramatic improvement of Black voting rates throughout the South. Congress reauthorized it in 1970, then again in 1975, then again in 1982, then again in 2006 — during periods of both Republican and Democratic rule in Washington, and often with bipartisan supermajorities.

The last time, in 2006, the House Judiciary Committee itself “assembled over 12,000 pages of testimony, documentary evidence and appendices from over 60 groups and individuals.” In its report, the committee explained its support for another reauthorization, saying that “40 years have not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” The 2006 reauthorization vote passed the House by 390–33, and the Senate by 98–0. It was signed into law by President George W. Bush.

In short, there may be no more emphatic, enduring or bipartisan expression of the American popular will than the Voting Rights Act. And that compounds the insult of its dismantling by the right-wing justices over the past decade and a half, beginning in 2013 with Shelby County v. Holder, continuing in 2021 with Brnovich v. Democratic National Committee, and culminating in April with Callais. All these rulings were 5–4 or 6–3, and all with every Republican appointee in the majority and every Democratic appointee in the minority.

My feeling as I recount this history is, How dare they? How dare this cabal of unelected, life-tenured lawyers reject decades of careful research, analysis, and open debate by the people’s representatives because, so they claim, racism in America isn’t a real issue anymore?

The entire Voting Rights Act–demolition project has been shot through with contempt from the start. I still remember Justice Antonin Scalia invoking the Senate’s unanimous 2006 vote to reauthorize the act during oral arguments in the Shelby County case. He did so not to acknowledge how remarkable it is for the Senate to be unanimous about anything, but to deploy that unanimity as a sword against the law. The overwhelming support for the act even throughout the South, Scalia mused, was not genuine, but “very likely attributable to a phenomenon that is called perpetuation of racial entitlement.” He went on, “Even the name of it is wonderful: the ‘Voting Rights Act.’ Who is going to vote against that in the future?”

It was the judicial version of swiftboating: transforming an opponent’s strength into a weakness. Still, let’s give him the benefit of the doubt and imagine he was right. So what? It is not the job of the justices to second-guess a federal law just because they don’t like it, or because they believe the lawmakers felt peer pressure to vote for it.

The sneering tone may have died with Scalia, but the right-wing justices’ overall disdain for the Voting Rights Act did not. Along with the Trump administration, two branches of the federal government are now openly hostile to democracy. They are practically inviting Congress to do something, anything, to stop them.

To help think through the options out there, I spoke to Daphna Renan, a law professor at Harvard and co-author, with her colleague Nikolas Bowie, of the upcoming Supremacy: How Rule by the Court Replaced Government by the People, about the Court’s treatment of the Voting Rights Act. “Congresses across history and multiple presidents and many thousands of people’s blood, sweat, and tears, thought it was a crucial rule for democracy. Why should Sam Alito get to decide that it’s not?” Renan asked.

He shouldn’t. Or, at least, not without convincing more of his colleagues. Renan and Bowie make the case that Congress can impose what they call a “consensus requirement” on the justices. That is, the Court has the power to strike down an act of Congress, in whole or in part, but it can’t be by a one- or two-justice majority. It must be by a vote of 7–2, or 8–1, or even 9–0.

As Renan and Bowie wrote in a recent New York Times essay, this would ensure that laws would be struck down by the Court only when their unconstitutionality was “beyond honest dispute.”

The argument in favor of a consensus (also called supermajority) requirement is straightforward: Certain decisions involve matters of sufficient gravity that they demand a higher bar be cleared before they are made. The Constitution already requires supermajorities in many well-known contexts, such as amendments, which must be approved by two-thirds of both houses of Congress and three-quarters of the states, or criminal jury verdicts, which must be unanimous to convict.¹ Two-thirds of Congress is required to override a presidential veto, and two-thirds of the Senate is required to obtain a conviction in impeachment proceedings (as Americans have been reminded multiple times in recent years). Requirements like these are onerous, and they raise legitimate concerns in a society otherwise based on majority rule. We accept them nonetheless, because we understand that a representative democracy benefits from requiring extra consideration and deliberation in special circumstances.

It’s hard to make the case that this rationale doesn’t apply with at least equal force to a decision by the Supreme Court that rejects a law duly passed by the elected representatives of all Americans and signed by the president. Not to mention the Senate’s self-imposed supermajority requirement, the filibuster, which both the Civil Rights and Voting Rights Acts (among many other major laws) had to overcome in order to pass, leading to our upside-down world in which the people’s 535 elected representatives are held to a stricter standard to pass a law than nine unelected lawyers are to overturn it.

To be fair, a supermajority requirement would not have applied to the Court’s ruling in Callais, which did not strike down Section 2 but purported merely to reinterpret it. It would, however, have applied to the rulings in Shelby County and other democracy-related cases, like Citizens United v. Federal Election Commission, in which the Court struck down federal laws (or parts of federal laws) as unconstitutional. If you think I’m just gunning for decisions I disagree with, this requirement would also have applied to the Court’s 5–4 invalidation of the Defense of Marriage Act in 2013, which I (like most liberals) was happy to see overturned. The point is that whoever’s ox is gored, it is good for the balance of powers if the Court feels more pressure to come to consensus when striking down the acts of another branch. This is all the more so on a Court that is so ideologically divided as our current one. And the requirement would incentivize the justices to decide more cases on statutory grounds (thereby avoiding the consensus requirement), giving Congress the opportunity to go back and fix whatever problems the Court identified.

Reasonable people can debate the legality and practicality of this idea, as they did thoughtfully in President Biden’s Supreme Court Commission Report from 2021. Still, in a moment of existential crisis for the Court, I am inclined to give it a shot. Article III of the Constitution, which establishes the Supreme Court, says nothing about voting rules, only that the Court may exercise its appellate jurisdiction subject to “such Exceptions, and under such Regulations as the Congress shall make.” Congress has also used its powers under the Necessary and Proper Clause to set, among other things, the Court’s size and the starting date of its annual term.

Anyway, this is not the first time the idea has been floated; starting in 1823, there have been scores of bills introduced in Congress that would impose a supermajority voting requirement on the Court when it considers challenges to federal (and sometimes state) laws. None has yet passed, although at least three states — Nebraska, North Dakota, and Ohio — have imposed such requirements on their own supreme courts.

The point of a consensus requirement is not to prevent the Court from deciding constitutional questions, but to make the justices work harder if they are going to strike down a law written and enacted by the people’s elected representatives. Since Marbury v. Madison in 1803, the Supreme Court has claimed the power to “say what the law is.” Congress should not be afraid to tell the justices that sometimes, they have to say it louder.

Would the Court nevertheless strike down a consensus requirement? “Quite plausible,” the Biden Commission concluded. That may be so, but it’s no reason to sit back and let the Court run amok. I don’t know about you, but I’m excited at the prospect of a comprehensive reset of American government. The current Court has arrogated power to itself for long enough, with increasingly devastating consequences for democracy and equality. It’s time for Congress to step up. As Franklin Delano Roosevelt might tell you, you never know what power you have if you don’t try to assert it.

---

What I’m Reading

My colleague Ashleigh Maciolek offers an important reminder that Clarence Thomas’s ascension to the number-two spot on the longest-serving justices list (behind only William O. Douglas) must be viewed in the larger context of his persistent ethical lapses.

In The New York Times, Jennifer Schuessler reports on the dilemma historians of the American founding face in the lead-up to the nation’s 250th birthday in July. One asks, “Are we just dinosaurs who haven’t realized the history profession is doomed?”

It’s a few years old, but this piece by Guy-Uriel E. Charles and Luis E. Fuentes-Rohwer in the journal Democracy accurately predicted that Section 2 of the Voting Rights Act was “operating on borrowed time.” Anticipating its demise, the authors call for the United States to join most advanced democracies in adopting a system of proportional representation.

And here’s a post from last week by Lee Drutman, one of my favorite political scientists, making the same point, but in greater detail. (Sorry for the duplication, but proportional representation is that important!)

In The Atlantic, Amanda L. Tyler surveys the long history of efforts to eliminate birthright citizenship. What used to come from “fringe elements of American society,” she writes, is now the official position of the White House.

Don Moynihan, a public policy professor at the University of Michigan, poses a bracing test for those concerned about the future of democracy: “Remember when you read a book or watched a movie about the 1930s, and you asked yourself ‘what would I have done under these conditions?’ The answer is: whatever you are doing now.”

IMAGE: Alex Wong/Getty

1. The Supreme Court has long interpreted the Sixth Amendment to require jury unanimity in federal criminal cases; in 2020, it extended that requirement to state jury verdicts.