My friend and colleague Eugene Volokh analyzes the Congressional Accountability for Judicial Activism Act of 2004, which provides that
The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court-(1) if that judgment is handed down after the date of the enactment of this Act; and (2) to the extent that judgment concerns the constitutionality of an Act of Congress.Eugene pays the drafters the compliment of taking the bill at face value and, accordingly, suggests a number of objections to the bill on both constitutional and practical grounds. (See also Amanda Butler's circularity question and Dahlia Lithwick's typically hyperbolic critique.)
I think taking the bill at face value misses the point, however. Or, at least, it misses what my point would be in offering such a bill: namely, to send courts a signal. As a Congressman, I would support such a bill, even if I knew it would never be used. Why? To tell the courts that we've had it with courts using the Constitution to enact the personal policy preferences. To tell them we've had it with courts thinking that they are some sort of super-legislature with power to set social policy on everything from economics to sexuality. And to remind them that in a democracy, it is the will of the people - not of nine unelected old men and women - that is the ultimate authority.
