Legal Ethics and Reform
A Proposal for .......
Legislative Nullification of
Supreme Court Decisions
It is clear that no attempt to impose legal reform on the U S will
succeed if a Supreme Court, manned by nine lawyers, is allowed to retain
the absolute power to declare all or part of any reform
unconstitutional. So some change in either the court's composition or
the range of its authority will be needed. It is possible to devise a
reform which makes the composition of the court more acceptable, but it
is far better to implement a reform which restores the Supreme Court to
its proper place as the weakest of the three branches.
The court therefore should continue composed as it is today;
but in the spirit of Art. III, Sect. 2 of the U S Constitution specific
provisions should be adopted to give legislators the power to
temporarily nullify the Court's decisions and return them to the Court
for reconsideration. Because litigants need to have their disputes
brought to a conclusions as quickly as possible, this nullification
process should be designed to operate as quickly as practicable.
First - there must be a 60 day window following the issuance of
each Supreme Court decision, including decisions to deny certiorari, for
a significant group of legislators to step forward and indicate in
writing to the Clerk of the U S House of Representative that this
decision has major societal implications and therefore deserves review
by the elected representatives of the people. If 10 Senators, or 44 U S
Representatives, or any 500 state legislators so indicated, the court
decision in question would be "stayed" pending the actions set out in
step 2 below.
Second - Once a court decision was "stayed", an additional 180 day
period would be set aside for all state and Federal legislative bodies
to debate the court decision at issue. Each legislative body would then
vote up or down to "temporarily nullify" the decision or not. If a
simple majority of both the U S Senate and U S House voted to
"temporarily nullify" the decision would be sent back to the Supreme
Court to be redone. If a simple majority of both legislative bodies in
26 states voted to "temporarily nullify" the decision would be returned
to the Supreme Court to be redone. (If Nebraska's unicameral legislative
body voted to "temporarily nullify" it would count as one of the 26
If a decision was "temporarily nullified" the court would be
expected to carefully study the comments made by U S Senators, U S
Representatives and state legislators who voted to nullify. Out of this
study the Court would no doubt find a new approach to make its handling
of the case acceptable to the broad base of American opinion.
Obviously, this process of nullification would not be used very
often, but the very existence of the process would cause the Court to be
very careful not to trigger legislative reaction to its work. Mark Levine, in his book Men in Black: How the Supreme Court is Destroying America, proposes a version of this idea. Under his proposal a 2/3 vote of Congress could overturn a Supreme Court decision.
Take Me To: