Ross had a big idea driven by watching Sandra Day O’Connor talk:
Over the past few years of court-watching, I’ve gradually moved from supporting some version of Scalia-style originalism to a much more radical judicial minimalism, in which the Court would show far greater deference to the other branches of government than either liberal or conservative jurists show today. (I have, of course, no qualifications to argue seriously for any theory of jurisprudence, but set that aside.) Of course, judicial nominees’ fine-sounding theories of minimalism have a way of collapsing upon contact with the kind of power the Supreme Court wields, so perhaps we ought to consider enforcing it – for instance, by requiring a supermajority of the Justices (either 6-3 or 7-2) to deem any existing legislation unconstitutional.
When he explained that idea to me verbally yesterday, I liked it quite a bit because I, like Ross, increasingly think that the very strong system of judicial review we have in the United States is a bit of a problem. But the more I think about it, the less workable this proposal seems to me to be. Among other things — where does this leave the Circuit and District Courts? And I’m not sure we can really define “deem any existing legislation unconstitutional” in an appropriate way, since our Court reviews cases rather than laws.
Meanwhile, to do this you’d have to change the constitution. Which is extremely hard. Indeed, it’s essentially impossible. And as long as we’re changing the constitution, I’d like to change that and make it easier to amend. It should, of course, be difficult to amend the constitution. But not as difficult as it is. And it’s the difficulty of changing the text that helps make the stakes of Supreme Court jurisprudence so absurdly high. Other changes I’d like to see would including ending lifetime tenure for judges (something like 12 years give or take would be adequately long) so as to make it reasonable to expect presidents to nominate highly experienced people, and the inclusion of something like Canada’s “notwithstanding clause”.
[headline for this post doesn't really make sense, but I like the reference too much to let it go]