|UMass Law Professor Dwight Duncan|
There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott to Lochner to Roe v. Wade to Citizens United, and even the recent Second Amendment decisions of Heller and McDonald, 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.
While the audacity of this idea is perhaps remarkable, flying as it does in the face of our
unbroken history of Supreme Court cases decided by majority vote of the Justices, I would ask the readers’ indulgence or suspension of disbelief for long enough to at least consider my argument. Since I have no power to implement this idea, which depends solely on the cogency of the reasons which support it – and I invite discussion and contestation of the idea – the proposal can truly, if somewhat ironically, be called "modest."
Here in its final form, this article hit my desk just as Democratic presidential candidate Beto O'Rourke appears on the news evincing receptivity to some form of Supreme Court packing, and in a season just after the dramatic unfolding of the Kavanaugh hearings. Duncan has been working on his modest proposal for a while longer than these events have been on TV, and his modest proposal has stood the test of peer reviews by many (me included). I have been privileged to hear Professor Duncan speak on this subject more than once, and I have learned something new every time. This article marks a worthwhile addition to the discussion of our Court, and the recollection that neither its composition nor its procedural customs are fixed in constitutional stone.