Judicial Review in The United States - Laws Limiting Judicial Review

Laws Limiting Judicial Review

Although the Supreme Court continues to review the constitutionality of statutes, Congress and the states retain some power to influence what cases come before the Court. For example, the Constitution at Article III, Section 2, gives Congress power to make exceptions to the Supreme Court's appellate jurisdiction. The Supreme Court has historically acknowledged that its appellate jurisdiction is defined by Congress, and thus Congress may have power to make some legislative or executive actions unreviewable. This is known as jurisdiction stripping.

Another way for Congress to limit judicial review was tried in January 1868, when a bill was proposed requiring a two-thirds majority of the Court in order to deem any Act of Congress unconstitutional. The bill was approved by the House, 116 to 39. That measure died in the Senate, partly because the bill was unclear about how the bill's own constitutionality would be decided.

Many other bills have been proposed in Congress that would require a supermajority in order for the justices to exercise judicial review. During the early years of the United States, a two-thirds majority was necessary for the Supreme Court to exercise judicial review; because the Court then consisted of six members, a simple majority and a two-thirds majority both required four votes. Currently, the constitutions of two states require a supermajority of supreme court justices in order to exercise judicial review: Nebraska (five out of seven justices) and North Dakota (four out of five justices).