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Political Checks on the Supreme Court, Then and Now

11:33 AM, Sep 2, 2011 • By ADAM J. WHITE
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Rick Perry's constitutional views are again sparking controversy. As Ruth Marcus notes, Perry previously called for a constitutional amendment to empower Congress to overturn Supreme Court decisions by two-thirds votes.

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That proposal terrifies Marcus, who believes that such a veto would have doomed Brown v. Board of Education half a century ago. Michael Barone and Ramesh Ponnuru already have explained that Brown easily would have survived congressional review. Andy McCarthy goes even further, endorsing the proposal as a useful check on a political Supreme Court.

Whether or not Perry's proposal is a good one, it's hard not to be struck by his constitutional bedfellows. Legislative vetoes of court decisions have been proposed before: by the progressives, a century ago. In 1912, one of the party's major platform planks was the referendum, empowering voters to overturn state court decisions. And while the party's platform proposed the referendum to supersede state courts, its presidential candidate, Teddy Roosevelt, "more than hinted that they should apply to the federal judiciary as well."

And so partisans like Ruth Marcus make an important mistake when they assume that a congressional veto or other structural constitutional reform inherently promotes particular partisan, sectional, or ideological outcomes. It almost certainly doesn't. A structural constitutional reform can be a means to widely disparate political ends. The same constitutional reform that furthered progressive ends yesterday may further conservative ends today—and vice versa.

Adam J. White is a lawyer in Washington, D.C.

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