How Much Deference Does SCOTUS Owe to Congress?

Should it take more than a 5–4 vote for the Supreme Court to strike down a federal law?

In 1893, a Harvard law professor named James Bradley Thayer published one of the most influential articles in U.S. legal history. "The Origin and Scope of the American Doctraine of Constitutional Law" made a sweeping case for the doctrine of judicial deference, arguing that the U.S. Supreme Court was almost always out of bounds when it struck down an act of Congress for violating the Constitution. According to Thayer, a federal statute should only be invalidated on constitutional grounds in those extremely rare cases in which "those who have the right to make laws have not merely made a mistake, but have made a very clear one—so clear that it is not open to rational question."

Thayer understood that his approach, if faithfully adopted, would mostly eliminate the federal judiciary's ability to review federal laws on constitutional grounds. And he was just fine with that, since he thought federal judges should mostly butt out of such cases anyway, on account of the vast deference the judiciary owed "to the practical judgment of a legislative body."

Thayer's hostility towards judicial review had a lasting influence on the thinking of several of the most important jurists of the Progressive and New Deal eras. "Both [Justice Oliver Wendell] Holmes and [Justice Louis] Brandeis influenced me in my constitutional outlook," Justice Felix Frankfurter declared in 1963. "But both of them derived theirs from the same source from which I derived mine, James Bradley Thayer."

I was reminded of Thayer's enduring influence the other day while reading a post by Jesse Wegman of the Brennan Center for Justice, which endorsed a version of Supreme Court "reform" that has been called a "consensus requirement." In essence, this requirement, which would be imposed on SCOTUS by Congress, would say that if the Court wanted to invalidate a congressional act, as Wegman put it, "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." According to Wegman, "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."

Thayer, writing in 1893, argued that SCOTUS should only strike down a congressional act when the constitutional violation "is so clear as to leave no room for reasonable doubt." Imposing a supermajority requirement on SCOTUS would be one way to bring to life in our time Thayer's vision of such a supremely limited judiciary.

But is that kind of limited judiciary really what today's liberals and progressives want? Perhaps it is, given the current 6–3 line-up of Republican and Democratic appointees on the Court. It wasn't always so, of course. When the Supreme Court struck down a key provision of the Defense of Marriage Act in United States v. Windsor (2013), the 5–4 ruling was hailed as a landmark liberal victory, no supermajority required.

And what about judicial review of the executive? If it's a good idea to require a SCOTUS supermajority to overrule an act of Congress, should it also take a SCOTUS supermajority to overrule an act of the president, who is also elected by, and democratically accountable to, the people? It seems odd to think that the Supreme Court should have more power to check the constitutional missteps of one branch of government than it has to check the constitutional missteps of the other branch.

Judicial deference has always been an idea that made for strange political bedfellows. Thayer's first followers were basically all Progressives who opposed the "reactionary" judges who ruled against their agenda. But conservatives such as Robert Bork soon became ardent Thayer-ians, too. Not so long ago, in fact, conservatives were the ones doing the loudest complaining about an "anti-democratic" judiciary thwarting the will of the people. And Trump, of course, is still loudly voicing such complaints, including against his own SCOTUS appointees.

So who knows, maybe the Democrats will gain control of Congress later this year and then persuade President Donald Trump to sign a new law requiring a supermajority vote from the Supreme Court before any act of Congress or the president may be ruled unconstitutional. In other words, today's Thayer-ians might want to be more careful about what they wish for.