I think it’s become perfectly clear in the last week that the Supreme Court is abusing its power. It seems to me that recent decisions of the court are based on what the majority of the justices want the law to be rather than what the law is. I think that the unchecked power of the Supreme Court has proven to be a design flaw in the Constitution. To return our government to the rule of law instead of the rule of nine appointed judges, I think we need to consider changing the Constitution to check the power of the Supreme Court. First let me explain why we need to check the Supreme Court. Then I’ll take a shot at proposing an amendment which I think will help.
I am in favor of gay marriage. If the court had ruled that a legal marriage performed in one state must be recognized in all states, I would have been very happy with the decision. The means Justice Kennedy used instead have badly damaged the outcome. The Supreme Court made it up in both the Obamacare case and the gay marriage case. The whole point of having written laws is that they are predictable. Everyone is supposed to be able to understand what the law is and live by it. Under current circumstances, Supreme Court rulings are more like professional football games. On any given case, the Supreme Court can change the plain meaning of the words in a statute, or the clear understanding of a Constitutional Amendment when it was ratified.
In the Obamacare case, the statute language said subsidies would only go to purchasers who used an "Exchange established by the State.” The Supreme Court added the words "or the federal government" because too many states did not set up exchanges. It's clear that the bill was very poorly drafted. In the bad old days, when Congress was the only legislature, this would have been a problem only Congress could fix. Instead, the executive and judicial branches conspired to cut Congress out of the process. This disenfranchises all of the voters who elected Senators and Representatives in 2010, 2012 and 2014. If the court had ruled that the statute meant what it said and the stayed its order until 12/31/15 to give Congress and the President time to fix the mess, that would have been a ruling on what the law is rather than what 6 justices thought Congress intended the law to be.
In the gay marriage case, the Supreme Court used the 14th Amendment to rule that gay marriage was mandated by the Constitution. In 1868, when the 14th Amendment was passed, homosexual acts were illegal in every state. The state legislators who voted to ratify the 14th Amendment thought they were ratifying equal rights regardless of race. When the 14th Amendment was used to invalidate laws against mixed race marriage, this was exactly what the ratifiers would have expected. None of them would have expected that gay marriage was what they had ratified.
One way to fix this might be a Constitutional Amendment permitting a Supreme Court minority opinion to be ratified by the legislatures of a majority of states within two years of any decision. If this happens, the minority takes effect instead of the majority ruling. This would put the brakes on crazy Supreme Court rulings that ignore the plain language of the Constitution or statutes. It would also give states back some of the power they have lost to the federal government.
I think that this is reasonable. The minority opinions are learned legal opinions, so this is not a blank check for the state legislatures. The mere possibility of opinions being overturned in this fashion might promote moderation and compromise in Supreme Court Decisions. If the threat wasn't enough, the remedy would not be easy, but it would be easier than a specific Constitutional Amendment to overturn a bad Supreme Court reading of the Constitution. It also would be easier than impeachment to correct a bad appointment.