WASHINGTON, D.C. — Harvard Law School professor Nikolas Bowie proposed a “consensus rule” that would require a unanimous or supermajority vote for the Supreme Court to strike down a federal law during his testimony before the House Subcommittee on Courts, Intellectual Property, Artificial Intelligence, and the Internet on May 21. Bowie framed this structural reform within a theory of “democratic constitutionalism,” arguing that elected representatives hold primary responsibility for interpreting the Constitution.

Bowie suggested that Congress could introduce this consensus requirement to alter the balance of power between the judiciary and the legislative branch. He also recommended that lawmakers include specific language in new statutes instructing courts on what standard of review to apply when interpreting those laws. This testimony occurred as the Supreme Court prepared to issue 12 decisions by July 2026, following recent reviews of orders regarding 14th Amendment citizenship and limits on proof required in Voting Rights cases.

Bowie said the role of the Court is not to defy federal law by placing itself above elected representatives of the people, to whom the Constitution and elections give primary responsibility for determining what the Constitution means. He further defined the judiciary's proper function in relation to other branches of government and private actors.

Bowie said the legitimate role for the Court is to enforce federal law against anyone who considers themselves above it, whether that anyone is a corporate executive, a state official, or a president. His proposal challenges the precedent set in 1803 by Marbury v. Madison, where the Marshall court held that it had the authority to declare laws unconstitutional, thereby establishing the principle of judicial review.

Jesse Wegman, a senior fellow in the Office of the President at the Brennan Center, explored similar concepts in the May 11 edition of his newsletter, Major Questions. Wegman outlined a specific threshold for such a rule, noting that under a consensus requirement, the Supreme Court would be able to declare an act of Congress unconstitutional only when the vote in favor was 7-2, 8-1, or 9-0. He drew a parallel to the rigorous process required for constitutional amendments, which must first be approved by two-thirds of both houses of Congress and three-quarters of the states.

Wegman wrote that certain decisions involve matters of sufficient gravity that they demand a higher bar be cleared before they are made. He argued that this higher threshold would not strip the Court of its power but would change the deliberative process behind its most significant rulings.

Wegman argued that the point of a consensus requirement is not to prevent the Court from deciding constitutional questions, but to make the justices work harder if they are going to strike down a law written and enacted by the people’s elected representatives. This perspective aligns with broader discussions about how to address judicial supremacy without dismantling the court entirely.

Jay Willis, a columnist for Slate, showed law professor Larry Kramer’s work on “popular constitutionalism” as an alternative or complementary approach to structural reform. Willis contended that the Constitution’s framers were comfortable with everyday Americans being engaged in the work of defining and applying the Constitution. He suggested that court reform can arise from this popular engagement rather than solely through legislative mandates.

Willis stated that “popular constitutionalism” involves regular Americans reading the Constitution, thinking about what it means, and sharing their conclusions via blogs, letters to the editor, or social media posts. He noted that this civic participation could serve as a check on judicial power.

Willis wrote that the methods by which normal people can have a voice in the Constitution’s meaning are less obvious than the methods by which, say, Justice Brett Kavanaugh can do it. He stated that popular engagement with the Constitution would limit the impact of a harmful Supreme Court ruling by engaging more people in explaining why the decision was wrong and calling on Congress to take action.

These proposals emerge amidst differing views on how to respond to Supreme Court decisions. Some Democrats have called for expanding the size of the Supreme Court or imposing term limits for justices, contending that such measures will serve the interests of all Americans. Other proposals for Supreme Court reform focus on jurisdiction stripping in presidential immunity cases.

Conversely, some conservative legal thinkers and publications have contended that efforts to change the Supreme Court will make the law less stable. These voices have urged critics to respond to rulings with tailored legislative action rather than broad reform bills. The Wall Street Journal Editorial Board called on Democrats not to “blow up the Supreme Court.” Instead, the board called on Democrats who disagreed with the court’s Voting Rights Act ruling to argue for a bill to limit how, or how often, states draw House maps.

The debate over a consensus rule touches on the foundational structure of American government established by judicial review in 1803. By proposing that Congress assert primary responsibility for constitutional interpretation, proponents like Bowie and Wegman seek to rebalance the authority between the elected branches and the judiciary. This discussion occurs as the Court continues to issue significant rulings on voting rights and citizenship, prompting varied responses from legislators and legal scholars.

The contrasting approaches—ranging from supermajority requirements and term limits to popular constitutionalism and tailored legislative fixes—reflect a broader struggle over the stability and legitimacy of the Supreme Court. While some argue that structural changes are necessary to protect democratic interests, others warn that such reforms could undermine legal consistency. The outcome of these debates may influence how future laws are interpreted and how the public engages with constitutional questions.

Why It Matters

Proposals like the consensus rule challenge the precedent of judicial review established in Marbury v. Madison by requiring a supermajority vote to strike down federal laws. This approach seeks to shift primary responsibility for constitutional interpretation from the judiciary back to elected representatives under a theory of democratic constitutionalism. Such structural changes would alter the deliberative process for significant rulings, making it more difficult for the Court to invalidate statutes enacted by Congress.