In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: giving the people a veto over controversial Supreme Court decisions.
The statement at issue:
“At the center of Theodore Roosevelt’s reform agenda [a century ago] was a simple, albeit controversial, proposal: the recall of judicial decisions…Roosevelt’s proposed remedy – what might be called a ‘People’s Veto’ – could be reserved for 5 to 4 decisions of the Supreme Court on constitutional issues….A People’s Veto would permit the public to weigh in, perhaps following a national petition drive or congressional authorization.”
– Thomas Donnelly, lecturer on law at Harvard Law School, “The ‘People’s Veto’: A way to keep the courts in check,” op-ed column in The Washington Post on December 30, previewing an article that is to be published in March in the Wisconsin Law Review.
We checked the Constitution, and…
Aside from the sometimes heated rhetoric recently in the Republican presidential race about “dictatorial” judges, there is an ongoing, civil discourse about various ways to ensure that the Supreme Court does not have the last word on the Constitution’s meaning. Of course, a constitutional amendment to explicitly redistribute the power to interpret the founding document would work.
But other ideas short of that, often coalescing around the idea of “popular constitutionalism,” have been emerging. The work of scholars such as Yale’s Bruce Ackerman, Stanford’s Larry Kramer and Harvard’s Mark Tushnet, for example, has been aimed at reclaiming a voice for ordinary citizens in constitutional interpretation. They are talking mainly about a simple assertion of a right to that voice, without the need for constitutional revision, as such.
Thomas Donnelly’s column may be only a variation on that theme, but his proposal is framed in such specific structural terms that it would seem to require that the existing Constitution be amended in order to erect a “People’s Veto.” His use of the word “veto” and the way in which he imagines its use suggest that at least some Supreme Court constitutional decisions would actually be undone simply by acts of popular will.
The Supreme Court itself has said repeatedly that even Congress lacks the power to alter one of the Justices’ constitutional rulings by passing a simple statute; only the Court itself, or a constitutional amendment, can do that, according to repeated Court precedent.
Donnelly apparently would change that, at least for that “handful of controversial cases” decided each term “by a bare majority” of the Court. Such rulings, he went on, “are all but impossible to reverse in the short term – even as they bitterly divide the Justices.”
He interprets such rulings as attempts “to push constitutional doctrine in a new direction,” and that, therefore, the American people should have a mechanism for responding, a way to say whether the public wants to follow along on such new paths. Thus, he suggests, a 5-4 Supreme Court decision would not “settle” the constitutional controversy, but instead would “trigger” a People’s Veto.
As an example, Donnelly notes that the media have been talking about how the Supreme Court will “settle” the constitutionality of the new federal health care law. If there were a People’s Veto, he argues, the media would in the future focus on ‘how the American people would likely ‘settle’ the controversy.”
This initial discussion provides no real detail on how that would actually come about, other than to say it might follow “a national petition drive or congressional authorization.” Both of those “triggers” appear to be somewhat akin to the Constitution’s present provision in Article V for calling a new constitutional convention. But he uses the word “voters” in talking about how the Veto would be expressed, saying that the voters “might ask themselves how they would decide the issue – and why.”
That sounds like not much more than an expression of constitutional advice, so it might not have the real-world effect of overturning the Supreme Court decision. But if the “voters” are, as he suggests, to gain the power to settle such divisive constitutional issues, there would have to be some device for translating their views into binding law. The complications of that are sufficiently daunting that one might ask whether Donnelly does, in fact, want the Veto to be binding.
It will be interesting, then, to read his extended version of the People’s Veto argument in the forthcoming law review article.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.