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A Supreme Court Check & Balance Amendment

A Congress of Courts

So Mark Levin’s liberty amendments propose a means for congress to overturn Supreme Court decisions by a vote within 2 years of the decision.  I think he is mistaken in both in giving that power to Congress and also the time limit.

Hypothetically (of course) let’s suppose that the Supreme Court finds a constitutional authority to penalize every citizen who does not purchase some product – we will use health insurance in this hypothetical scenario.  Mark Levin’s process dictates that if the Congress does not overturn the decision within two years the decision stands in perpetuity. First, the Court might interpret the Federal Government as having more authority than granted in the Constitution, and other branches of the Federal Government are likely to agree.  So, I think the check should come from the state.  Second, I do not think the legislative branch should decide judicial issues any more than the executive or judicial branches should legislate. So, the check would need to come from the judicial branch.  Third, if the Supreme court makes a bad decision in 1973 (for instance) there should be a means to overturn it in 2014.  What is my suggestion?  A Congress of Courts.

Each year each state supreme court will submit a list of Supreme Court decisions that the State Supreme court agrees should be overturned.  For each revised ruling request there will also be a suggested decision.  If any decision garners a majority of requests for revision a congress of courts will assemble.  The congress of courts will consist of one representative from each State Supreme court.  The congress of courts will review each decision submitted for the list of rulings to be overturned and adopt one of the submitted rulings.

Example – 32 state supreme courts request an overturn of the Obamacare decision.  Some justices work together in writing suggested decisions, and so 18 suggested decisions are submitted.  50 justices then assemble, call to order, and simply vote on which suggested decision to adopt.  The top decision gathers a total of 15 votes.  The decision is final and replaces the decision handed down in 2012.  If instead two suggestions each gather 10 votes (and nothing gets more than 10) then the President of the Courts will select one of those two as the final decision. There is no room for revision of the decision so the process cannot get bogged down in conference.  Ideally the entire process would take 2 days since any collaboration would need to occur well before the convention of the Congress of Courts.

This would allow states to have  a say in what is constitutional and what is not (a state check on the Federal Court system), and also allow old stupid decisions to be overturned (Wickard v. Filburn).  Also, judicial decisions remain within the judicial system and thereby keeping the separation of powers between branches.  The states remain limited since they are a reactionary force only (the congress of courts can only make decisions in response to bad decisions made by the supreme court).

Suggested Amendment:

Each year each State Supreme Court shall on or before August 1st submit a list of any Supreme Court Decisions that the State Supreme Court believes should be overturned along with an explanation of the error in the original decision and a suggested decision.  If a majority of State Supreme Courts request by August 1st that any individual decision be overturned then a Congress of Courts shall convene on or before September 1st.  The Congress of courts shall consist of one representative from each State Supreme Court.  The Congress of Courts shall be presided over by one of the members of the Congress of Courts elected by the majority of the Congress of Courts.  If no majority is reached within three votes then the Congress of Courts will be presided over by the Chief Justice of the Supreme Court.  For each original decision that a majority of State Supreme Courts has requested revision the Congress of Courts shall select from the suggested decisions by plurality one revised decision to replace the original decision.

If there is a tie between two or more decisions after two votes then the President of the Courts shall select one of the decisions from among the top selected revised decisions.

* Note – I do not specify how the representatives of each court are selected.  I would think the Chief Justice of each state’s supreme court, but the option of whether to do that or elect a representative, or send a Senator is up to the state supreme court.

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