WASHINGTON, D.C. — A new analysis by legal journalist Jesse Wegman proposes a reform to the Supreme Court of the United States that would require more justices to agree before the Court could overturn laws passed by Congress and other federal statutes.
Wegman suggests the Court should not be able to strike down a law with only a narrow majority of justices. Instead, he proposes a “consensus requirement,” meaning more justices would need to agree before a law is invalidated.
Right now, the Supreme Court can overturn a law if a simple majority of justices agree. Wegman argues this gives too much power to closely divided decisions.
The proposal is discussed in connection with major voting rights cases, including Shelby County v. Holder, Brnovich v. Democratic National Committee, and Louisiana v. Callais, which were all decided by close votes.
Wegman focuses on the Voting Rights Act of 1965, calling it the “crown jewel of the civil rights movement.” The law was first passed in 1965 and later renewed several times with strong bipartisan support and approval.
He notes that in 2006, Congress reauthorized the law after extensive research and debate. The House passed it 390-33, and the Senate passed it 98-0 before it was signed into law by President George W. Bush.
Despite this support, Wegman argues that the Court has steadily weakened the law, writing that there is “no more emphatic, enduring or bipartisan expression of the American popular will than the Voting Rights Act.”
The analysis points to remarks by Justice Antonin Scalia during arguments in Shelby County v. Holder, where he described congressional support for the law as “very likely attributable to a phenomenon that is called perpetuation of racial entitlement.” Wegman presents this as an example of the Court casting doubt on bipartisan legislative consensus.
Wegman argues that “a consensus requirement would ensure that laws are struck down only when their unconstitutionality is beyond honest dispute.”
He further argues that “it is not the job of the justices to second-guess a federal law just because they don’t like it,” emphasizing that judicial disagreement should not override congressional authority or narrow disagreements between the justices.
Under the proposal, the Court would still retain judicial review but would need broader agreement, such as a 7-2 or 8-1 vote, to strike down federal statutes.
Wegman notes that the Constitution does not specify voting rules for Supreme Court decisions, stating that Congress may impose “such Exceptions, and under such Regulations as the Congress shall make” under Article III.
He also points out that supermajority requirements already exist in other areas of government, including constitutional amendments, veto overrides and impeachment convictions. He writes that these examples reflect the idea that “a representative democracy benefits from requiring extra consideration and deliberation in special circumstances.”
Wegman adds that it is “hard to make the case” that overturning acts of Congress should require less scrutiny than passing them, particularly given that major legislation often must overcome the Senate filibuster.
The analysis suggests that a consensus requirement could push the Court to decide more cases on statutory rather than constitutional grounds, allowing Congress to respond and adjust laws when necessary.
Wegman acknowledges that such a reform could face legal challenges, noting that the Biden-era Supreme Court Commission found it “quite plausible” that the Court could attempt to strike it down. Still, he argues that there is “no reason to sit back and let the Court run amok.”
He concludes that Congress should consider more strongly asserting its authority over the Court, writing, “It’s time for Congress to step up.”
The proposal comes as debates over the role of the courts, the balance of powers and the future of American democracy continue to intensify across the country.
Follow the Vanguard on Social Media – X, Instagram and Facebook. Subscribe the Vanguard News letters. To make a tax-deductible donation, please visit davisvanguard.org/donate or give directly through ActBlue. Your support will ensure that the vital work of the Vanguard continues.
