Monday, March 22, 2004

Congressional Override of the Supreme Court

It has been well-established in our legal system that the Supreme Court has the power to interpret the meaning of the Constitution and to declare void any law passed by Congress that the Supreme Court justices deem to violate the Constitution. This Supreme Court power does not come from a specific clause in the Constitution itself. Rather, it comes from Supreme Court case law which has the same binding effect as the text of the Constitution itself. This doctrine of judicial review was born in 1803 in the famous case of Marbury v. Madison.

However, some lawmakers are hoping to limit the power of the high court. Representative Ron Lewis of Kentucky recently introduced a bill that would allow Congress to override Supreme Court rulings that declare acts of Congress unconstitutional. The override would require a two-thirds vote in both the House and the Senate. This is indeed an interesting concept.

The Constitution itself creates the three distinct branches of government. In addition, it sets up some checks and balances. Article 1, Section 7 of the Constitution describes how laws are to be made. In this section, veto power is given to the executive branch. This section also gives the legislative branch the power to override this veto by a two-thirds vote in both houses of Congress. The federal judiciary is created in Article 3 of the Constitution. Article 3 describes the jurisdiction of federal courts but is silent as to the Supreme Court's power to declare acts of Congress unconstitutional.

We teach students in civics classes that our government is made up of three distinct and equal branches of government that all have checks and balances on each other. In reality, however, there is no check on the power of the unelected Supreme Court. The only limit on the Supreme Court's power is the practical fact that the justices do not have an army or a police force to implement their rulings. Beyond this fact, the legislative and executive branches, both of which answer to the voters, have no recourse if the Supreme Court strikes down a law that they enacted. In some ways, this is likely what the Founding Fathers intended when they created an independent judiciary. They most likely wanted a stabalizing force to balance out the political passion of the popularly elected branches. For this reason, a bill like the one introduced by Rep. Lewis seems like a dangerous shift in power. However, an examination of the text of the Constitution reveals that the Founders chose to stop short of explicitly giving the power to strike down laws to the Supreme Court.

I am intrigued by the concept of this bill. It has some gut-level appeal since it would put a check on a seemingly all-powerful and unelected branch of government. However, I am quite cautious about the idea of changing the power structure of our government. The existing structure has served us well for over 200 hundred years. From a practical standpoint, I believe that the Supreme Court would strike down a law like Rep. Lewis' as an unconstitutional violation of Marbury v. Madison. A constitutional amendment would probably be required to implement a Congressional override of the Supreme Court.