The Problems with Legislative Overrides of Judicial Rulings

By Beck Reiferson and Benjamin Edelson — In April 2021, President Joe Biden signed an executive order establishing the ‘Presidential Commission on the Supreme Court of the United States,’ a commission of legal scholars formed to discuss potential reforms to the Supreme Court. In October of that same year, the Commission released discussion materials prepared in advance of its fourth meeting. These materials outline a variety of proposed reforms to modify “the Court’s role in the constitutional system.”1 One reform that the Commission considers is the establishment of “legislative overrides of Supreme Court decisions.”2 The purpose of such overrides would be “to minimize judicial supremacy—i.e., the system under which the Court is the final and authoritative arbiter of the constitutionality of statutes or executive action.”3 These concerns about the Court wielding quasi-legislative power are valid. We believe, however, that legislative overrides are a poor solution for two important reasons: (1) they would undermine the principle of checks and balances, which is central to the functioning of our constitutional system, and (2) they would be contrary to one of the key purposes of the Court—to keep some fundamental issues (e.g. the right to vote, the free exercise of religion, etc.) out of the democratic sphere and safe from the influence of political majorities. …