A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws

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There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott[1] to Lochner[2] to Roe v. Wade[3] to Citizens United,[4] and even the recent Second Amendment decisions of Heller[5] and McDonald,[6] these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so is the subject of this article. I leave for another occasion the legal and practical questions of how to implement such a unanimity requirement.

[1] Dred Scott v. Sandford, 60 U.S. 393 (1856).

[2] Lochner v. New York, 198 U.S. 45 (1905).

[3] Roe v. Wade, 410 U.S. 113 (1973).

[4] Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010).

[5] D.C. v. Heller, 554 U.S. 570 (2008).

[6] McDonald v. City of Chicago, 561 U.S. 742 (2010).


Originally published by Brigham Young University Journal of Public Law in 2019.