Page:EO 14023 Commission Final Report.pdf/192

 vote of the Senate and House of Representatives. A few scholars from the opposite side of the political spectrum from Bork have recently expressed support for legislative overrides, albeit without offering any detailed proposal. Meanwhile, at the state level, numerous state legislators have introduced legislation to allow overrides of state court decisions, though none of these efforts has been successful.

In this Section, we consider (a) the goals of a system of overrides and whether such goals are likely to be achieved by the reform; and (b) the overall consequences for the functioning of the constitutional system if overrides are successfully implemented. We also distinguish among different forms of override systems. For the purposes of this analysis, we assume that an override system would be adopted through constitutional amendment, though we discuss the arguments regarding how Congress might engage in independent constitutional interpretation or attempt to limit the reach of Supreme Court decisions in Part III.C.

As with the other reforms discussed in this Chapter, we note that a system of legislative overrides has no inherent or fixed partisan or ideological valence—an override system could be used to advance the goals of any legislative majority or supermajority. However, some commentators have argued that elite interests are more likely to find a favorable audience with the Supreme Court, and therefore to benefit from a system of judicial supremacy; on this account, shifting power away from the courts and toward the legislature would benefit non-elites. Others, however, have argued that Congress is also more responsive to elites than it is to non-elites or the poor.

Congress on occasion has enacted one-off efforts to override a Supreme Court decision. But its efforts, such as its attempt to override the Court’s decision in Miranda v. Arizona with the Omnibus Crime Bill of 1968, have tended to have subject-specific goals (to change a particular constitutional doctrine) and have generally been rebuffed by the Court. The goals of a constitutional amendment enabling legislative overrides would be more fundamental. Their chief aim would be to allocate power away from the Supreme Court and toward the elected branches. Proponents of legislative overrides, as with other disempowerment reforms, worry that the Supreme Court exercises excessive power over the resolution of major social, political, and cultural decisions—decisions that would be better resolved through the democratic process. As we discuss in the Introduction to this Chapter, for these critics, the