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 states.)

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.

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