Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons from the Past

Over the past eight years, the Supreme Court has been unusually aggressive in its exercise of judicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority; in ten of the eleven cases, the vote was five-to-four. Many scholars have recently considered ways in which Congress can either work within the new doctrinal constraints laid down by the Court, or circumvent those constraints entirely. In this Symposium Essay, I explore a more direct congressional mechanism for tempering the Court's aggressive review: imposition of a supermajority consensus requirement (say, six Justices rather than five) before the Court can invalidate a federal statute on federalism grounds. While virtually unheard-of today, this was a popular congressional proposal at earlier times in our history, especially during the Progressive Era. Indeed, two states that adopted a supermajority protocol during that period still operate under such a rule today. The notion was that such a supermajority requirement would institutionalize the prevailing view (then generally associated with James Bradley Thayer) that the Court shouldn't invalidate a federal statute unless it was perceived to be unconstitutional "beyond reasonable doubt." In this Essay I bracket questions regarding the constitutionality and logistical feasibility of such a proposal today, and simply use the supermajority concept as a heuristic lens through which to explore different ways of institutionalizing what today's Court would articulate more loosely as a "presumption of constitutionality." Drawing upon the Progressive Era debates, I try to offer new insights into the operation of such a presumption, as well as to remind us of an additional mechanism for consideration by those who would advocate beefing up this presumption in the federalism (or any other) context.