My Big Idea: Supreme Court Supermajorities

Like my colleagues, I'm out at the Atlantic-sponsored Aspen Ideas Festival for the next few days, and last night I attended the opening ceremonies, where a parade of worthies stood up to offer their "big idea" for the week. Matt's already taken note of the evening's most interesting moment: Shelby Steele choosing "the case against white guilt" as his big idea, which led to a certain amount of seat-shifting among the predominantly-liberal audience, who are after all attending a Festival that frequently partakes of precisely the spirit Steele was criticizing. Which is to say: Good on the organizers for having him. (Though I agree with Matt that Steele largely lost me when he concluded by arguing that "white guilt" is largely responsible not only for the failures of affirmative action, but for our military difficulties in Iraq as well.)

Steele was followed to the podium by Sandra Day O'Connor, who delivered rather less memorable remarks about civic engagement, which included her usual bit about how we need more respect for the judiciary and fewer attacks on activist judges in our public life. She seemed like a perfectly nice, perfectly intelligent person, but listening to her I experienced something like the feeling Jim Manzi expresses here: Namely, a mix of annoyance and outrage at how many significant controversies in American life have come down to the question of what Sandra Day O'Connor (and now Anthony Kennedy, of course) thinks about the matter.

With this in mind, here's my big idea for the week. Over the past few years of court-watching, I've gradually moved from supporting some version of Scalia-style originalism to a much more radical judicial minimalism, in which the Court would be obliged to show far greater deference to the other branches of government than either liberal or conservative jurists show today. (I have, of course, no qualifications to argue seriously for any theory of jurisprudence, but set that aside.) Of course, judicial nominees' fine-sounding theories of minimalism have a way of collapsing upon contact with the kind of power the Supreme Court wields, so perhaps we ought to consider enforcing it - for instance, by requiring a supermajority of the Justices (either 6-3 or 7-2) to deem any existing legislation unconstitutional.

Essentially, this model would mean that whenever there are strong arguments on both sides of a given constitutionality question - the sort of situation that produces most of the 5-4, "how will Kennedy vote this time?" decisions - the Court would be forced to defer to the legislative branch. The theory would be that in a polarized Court, if you can't convince at least one Justice who doesn't share your ideological preconceptions to side with you - and there are plenty of recent cases where John Roberts has done exactly that, so it isn't a pipe dream - the issue should be left to the public and their representatives to hash out. (And note that I'm arguing against interest here, because this rule would leave my least-favorite ruling - Roe, decided by 7-2 - in place, while overturning recent decisions - on guns and affirmative action, among others - that I agree with.)

Of course there are all sorts of reasons why this wouldn't work - but hey, it's an Ideas Festival, dammit! I'm just throwing it out there!