Why Some Advocates Want Congress to Limit Supreme Court Power with a Supermajority Rule

Thayer’s Doctrine: The Case for Extreme Judicial Deference

In 1893, Harvard law professor James Bradley Thayer published "The Origin and Scope of the American Doctrine of Constitutional Law," one of the most influential legal articles in U.S. history. Thayer argued that the U.S. Supreme Court should rarely, if ever, strike down an act of Congress for violating the Constitution. According to his doctrine, a federal statute should only be invalidated in cases where the constitutional violation is "so clear that it is not open to rational question."

Thayer’s approach would have effectively eliminated the judiciary’s ability to review federal laws on constitutional grounds. He believed federal judges should defer overwhelmingly to the "practical judgment of a legislative body," prioritizing legislative authority over judicial review. His views profoundly influenced key jurists of the Progressive and New Deal eras.

Justice Felix Frankfurter acknowledged Thayer’s impact in a 1963 statement:

"Both [Justice Oliver Wendell] Holmes and [Justice Louis] Brandeis influenced me in my constitutional outlook. But both of them derived theirs from the same source from which I derived mine—James Bradley Thayer."

Modern Proposals: A Supermajority Requirement for SCOTUS

Thayer’s ideas have resurfaced in contemporary debates over Supreme Court reform. Jesse Wegman of the Brennan Center for Justice recently endorsed a proposal to impose a "consensus requirement" on the Court. Under this rule, the Supreme Court could only invalidate a congressional act with a supermajority vote—such as 7–2, 8–1, or 9–0. Wegman argued that this requirement would force justices to "work harder" before striking down laws passed by elected representatives.

Thayer’s 1893 standard—that a constitutional violation must be "so clear as to leave no room for reasonable doubt"—aligns closely with the supermajority proposal. Both approaches seek to limit judicial intervention in legislative matters, ensuring that the Court defers to Congress unless a violation is unmistakable.

Would Liberals and Progressives Embrace This Approach?

The question remains: Do today’s liberals and progressives truly support a judiciary that defers so heavily to Congress? The answer may depend on the Court’s composition. With a 6–3 conservative majority, some progressives advocate for structural reforms to curb the Court’s power. However, this stance contrasts with past liberal victories achieved without supermajority requirements.

For example, in United States v. Windsor (2013), the Supreme Court struck down a key provision of the Defense of Marriage Act in a 5–4 decision, celebrated as a landmark liberal victory. No supermajority was required. Similarly, other progressive legal wins—such as Obergefell v. Hodges (2015), which legalized same-sex marriage nationwide—were decided by narrow margins.

This inconsistency raises a critical question: If liberals support judicial intervention when it aligns with their policy goals, do they truly endorse Thayer’s vision of extreme deference? Or is the supermajority proposal merely a tool to constrain a Court they perceive as ideologically opposed to their agenda?

Conclusion: A Doctrine Revisited in a Polarized Era

James Bradley Thayer’s doctrine of judicial deference remains a touchstone in legal debates over the Supreme Court’s role. While his ideas were once influential among progressive jurists, their modern revival—particularly in the form of a supermajority requirement—challenges liberals to reconcile their support for judicial activism with a framework that could limit their own future victories.

As the Court’s ideological balance continues to shape legal outcomes, the tension between judicial review and legislative deference shows no signs of fading. Whether this supermajority proposal gains traction may hinge on whether progressives prioritize structural reform over immediate policy wins.