Judges Commons^™

A Six-Three Rule: Reviving Consensus And Deference On The Supreme Court, Jed Handelsman Shugerman

Faculty Scholarship

Over the past three decades, the Supreme Court has struck down federal statutes by a bare majority with unprecedented frequency. This Article shows that five-four decisions regularly overturning acts of Congress are a relatively recent phenomenon, whereas earlier Courts generally exercised judicial review by supermajority voting.

One option is to establish the following rule: The Supreme Court may not declare an act of Congress unconstitutional without a two-thirds majority. The Supreme Court itself could establish this rule internally, just as it has created its nonmajority rules for granting certiorari and holds, or one Justice who would otherwise be the fifth …

"Sir, Yes, Sir!": The Courts, Congress And Structural Injunctions, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This is a deeply confused book. Not that the authors' stance is unclear: They have seen federal courts in action, and they don't like what they see. Their subject is federal judicial supervision of state and local governments through injunctive decrees. The authors' position wouldn't be confused - or at least would be confused in a different way - if they dealt with injunctive decrees aimed at enforcing what the judges took to be constitutional requirements. In such cases there's at least something coherent that can be said about judges displacing democratic decision-making. Sandler and Schoenbrod, though, don't deal with …