Yuval Erez (Yale University – Law School) has posted Supermajority in Supreme Courts: An Old Promise or a New Threat? (Notre Dame Journal of Law, Ethics & Public Policy) on SSRN. Here is the abstract:
The view that supreme courts (or constitutional courts) should practice judicial review of legislation based only on a “supermajority” vote is highly controversial. It is often supported by the claim that supermajority decision-making promotes consensus-building and strengthens the legitimacy of the court. The Article calls for a reassessment of this argument in the context of the current reality of the United States Supreme Court, which, while not following a formal “special majority” rule, has effectively operated with a 6–3 conservative majority on many occasions. This reality does little to enhance the Court’s legitimacy—and certainly does not improve public trust. The Article also reassesses the supermajority mechanism with reference to comparative case studies, highlighting the growing correlation, in some constitutional systems, between reforms geared toward the adoption of a supermajority rule in constitutional decision-making and democratic backsliding.
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