I would like to see Congress override court rulings similar to overriding a presidential veto.
The Presidential veto is an expression of the idea of a shared responsibility in law-making. The legislature has the primary responsibility, the President has a veto that might override what they pass, and the legislature has a veto-override. This works because of two characteristics of this process: (1.) The process is asymmetrical in that passing a bill is very different from not passing a bill. The President can veto the legislature’s decision to pass a bill and make it not pass. But if the legislature votes down a bill in the first place, the President cannot veto their decision to vote it down and make it pass instead. In other words, he can stop an affirmative decision, but he cannot reverse a refusal. Similarly the legislature can stop the President’s active veto, but it cannot force him to veto when he doesn’t want to (if such a thing even made sense). So that is the asymmetry of the veto and override system. (2.) The President and the legislature are both elected offices with limited terms and similar degrees of dependence on their electorate.
Now let’s look at how court rulings are different in these two areas. (1.) Court rulings are inherently symmetrical. There is not necessarily an affirmative side to a decision. The court can decide to rule in either side of a case, or it can decline to rule at all. This is very different from the legislative process where the bill actively does something, and not passing the bill does nothing. So one wonders how a “legislative override” of a court decision would work in such a case. Could it force the decision in either direction? This would make it doubly as strong as an override of a Presidential veto, which can only force in one direction - the direction of doing nothing. Or could your proposed legislative override of a court decision convert a decision to decline to take up the case into a decision for one side or the other in the question? This would make it triple the strength of the analogous thing in the legislative process. So any sort of legislative override would not be very analogous to what we have in the law-making process.
(2.) In direct contrast to elected offices of President and legislator for limited terms, we have the USSC, which is an appointed position for life. The founding fathers established the courts very differently from the elected offices for a reason. They wanted the judges to be as free as possible from being influenced by the next election cycle. They wanted them to be independent, even of the President who appointed them. There is no mechanism (except for gross misconduct) for a President to remove a judge from office, even if he was the one who appointed that judge. It is all designed to distance the judge as much as possible from outside political and short-term pressures. The hope was that under such conditions, the judges are more likely to make decisions along the lines of what they truly believe is best for the good of the country. So having a legislative override of judicial decisions undermines all these intentions of the Founding Fathers. You may be hoping that today such a mechanism may allow a more enlightened legislature to do things like override Roe v. Wade. And maybe they would. But then if in a few years, a less enlightened legislature gets in power, you may not like the “legislative activism” that will result from you new provision of giving judicial powers to the legislature.
I would like to see the States override federal laws with a 2/3 or maybe 3/4 majority of the States voting to do so.
This essentially creates an alternate federal legislature out of the state legislatures. This essentially guts the power of the existing national legislature, and replaces it with a body that is not more responsive to the people than the body that you just displaced. The alternate federal legislature is elected on a state by state basis, just like the existing one. What’s the difference?
