New Bill of Rights

Candidate category · Unpolled; regime-coded proxies

Supermajority for the Supreme Court to strike down federal laws

No independent national poll has ever asked the mechanism with a party breakdown; every measurable attitude toward the Court's power is regime-coded (75% R and 11% D approval, Gallup 2025), and coverage is unsettled.

Under consideration since 2026-08-18. A candidate is neither accepted nor rejected — it is waiting on evidence against the full-spectrum test. What we know, what we don't, and what would move it are below.

The proposal

The idea is a voting rule, not a structural one: the Court could hold an Act of Congress unconstitutional only with more than a bare majority concurring — six of nine, seven of nine, or two-thirds. Nothing in the Constitution or the Judiciary Act of 1789 sets the rule; the Court appears to have assumed from the start that a simple majority sufficed.1 Coverage matters more than the threshold: federal statutes only, or also executive action or state law.2 The first congressional proposal came in 1823, the fullest catalogue counts sixty-three, and each wave followed rulings that went against the coalition proposing it.34 Nebraska and North Dakota run the rule today.567

The evidence

The proposal has not been polled. No independent national survey asking whether the Court should need a supermajority to strike down a federal law could be located; we searched the major independent pollsters and the advocacy aggregators on 2026-08-18, and the sources that discuss the mechanism at length cite no poll of it.8 No current bill imposing the rule was found, and a 2026 House hearing produced no roll call.9

The nearest miss is a Court reform battery that omitted the item: its closest question, a two-thirds Senate supermajority to confirm a nominee, drew 44% of Republicans and 71% of Democrats (YouGov, 2026) — the appointment stage, not the decision stage.10 Two proxies bear on the Court’s power; neither is evidence for this mechanism. Judicial review is uncontested: 87% said the Court may declare laws invalid if they conflict with the Constitution — 87% of Republicans and 86% of Democrats (Marquette Law School, 2025).11 Views of that power split sharply: “too much power” drew 17% of Republicans and 42% of Democrats, while 68% of Republicans called it “about the right amount” (YouGov, 2026); approval ran 75% of Republicans to 11% of Democrats (Gallup, 2025).121314

The operating record is fuller. In Nebraska, four of seven judges found a statute unconstitutional and it stood, because five had not so voted;15 in North Dakota, a school finance system was upheld though three of five justices found it unconstitutional;16 Ohio repealed its rule after difficulties of the same kind.1718

Where it stands

Unpolled. There is no bipartisan floor and no verdict follows — absence rather than staleness: not numbers that have aged, but numbers that never existed. Three tests are open.

  • Support may track who holds power. Attitudes toward the Court are regime-coded — a 64-point party gap on approval (Gallup, 2025) and a 25-point gap on “too much power” (YouGov, 2026).1412 Ratification takes thirty-eight states over years, and the rule has been measured on only one side of a change in control. It reads either as limiting judicial power or as protecting statutes Congress passed; neither wording has been asked of both parties.
  • The existential-problem test is unresolved. The case for the rule is that questions of the first order are settled by one vote, and the losing side treats each outcome as illegitimate. The case against is that the public does not report that grievance: 86–87% of every party affirms judicial review (87% of Republicans, 86% of Democrats; Marquette, 2025).1112
  • The why-an-amendment test is open in an unusual direction. The Commission calls it “a difficult question” whether Congress could impose the rule by statute, and the Congressional Research Service agrees, with no case testing the scope.1920 Coverage is unsettled too: the Commission names two 5–4 rulings that “would have been decided otherwise.”2122

Court structure is the rejected Court-expansion category; tenure is our fixed-terms amendment. Neither touches the decision rule.

Framings we tested

Nothing that clears the bar is this proposal. The mechanism is unpolled in every variant: the threshold version, the version reaching state law and executive action, both rival framings, and the 1924 congressional-override proposal.23 The one adjacent supermajority that has been asked, two-thirds of the Senate to confirm a justice, reads 44% of Republicans and 71% of Democrats (YouGov, 2026): Weak, and a different mechanism.10

Two framings on the Court do clear the bar, and both are already ours: fixed eighteen-year terms and an enforceable ethics code. Both address the Court’s composition and conduct rather than the arithmetic of invalidation, which is not where the measured dissatisfaction sits.11

What would move it

In: an independent pollster fielding a forward-looking, both-parties item naming neither the current Court nor any recent case — whether the Court should strike down a law passed by Congress only if at least six of nine justices agree, applying to any future Court and any future law — plus a follow-up that prices it: even if a law five justices believed unconstitutional stayed in force. The bar is 60% or more in both parties on the priced version, replicated after a change in the Court’s appointing-party majority or paired with a prospective effective date, with coverage limited to federal statutes. A cross-party joint resolution or a fourth state adopting the rule would count too.

Out: the priced question returning below 45% in either party, a Weak floor. Or the two framings producing Republican and Democratic numbers that trade places, establishing the rule as a proxy for the sitting Court rather than a principle. Or support collapsing once respondents learn what Nebraska’s rule did.15

Sources

  1. “[F]rom the beginning, … the Court appears to have assumed that a simple majority vote was sufficient to determine its rulings”; nothing in the Constitution or the Judiciary Act of 1789 sets the rule — Presidential Commission on the Supreme Court of the United States, Final Report, Dec. 2021, ch. 4, p. 170. ↩

  2. “[T]he more actions to which the supermajority voting requirement applied, the greater the shift in influence to other institutions” — Final Report, Dec. 2021, p. 175. ↩

  3. The first congressional supermajority proposal came in 1823; the most complete catalogue lists sixty-three, with the caveat that it “may not include every original supermajority proposal ever introduced.” A February 1923 bill would have required “at least seven members of the court concur before pronouncing said law unconstitutional” (S. 4483, 67th Cong.); a version reaching state statutes followed (S. 1197, 68th Cong.), and a 1967 bill would have required six justices for federal or state law. None has been enacted — Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rules, 78 Ind. L.J. 73 (2003), n.9, n.52 and Appendix; Final Report, Dec. 2021, pp. 170–71. ↩

  4. The proposals of the 1820s followed decisions striking state laws; the Reconstruction proposals followed fear the Court would undo Reconstruction statutes, and the House passed such a bill while the Senate did not act on it; the 1920s proposals followed pro-business rulings by narrow majorities — Final Report, Dec. 2021, pp. 170–71. ↩

  5. “No legislative act shall be held unconstitutional except by the concurrence of five judges” — five of seven, adopted 1920, still in force — Nebraska Constitution, art. V, §2. ↩

  6. The supreme court “shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide” — four of five, adopted 1919, still in force — North Dakota Constitution, art. VI, §§2, 4. ↩

  7. Ohio adopted a six-of-seven rule in 1912 and repealed it in 1968 by the Modern Courts Amendment; the Commission records that North Dakota’s and Nebraska’s rules “have not posed significant operational difficulties,” while Ohio “repealed [its rule] in 1968 after experiencing difficulties in practice” — Final Report, Dec. 2021, p. 171; Caminker, pp. 90–91, nn.68–70. ↩

  8. No independent national poll of the mechanism, with or without a party breakdown, could be located; searched 2026-08-18 across Pew, Gallup, AP-NORC, Marquette, YouGov/Economist, Fox, Monmouth, Quinnipiac, PRRI and the University of Maryland Program for Public Consultation, and across the advocacy aggregators. The 2021 Commission report, the February 2026 CRS product and the 2026 commentary wave cite none — Final Report, Dec. 2021, ch. 4; CRS IF13166, Feb. 10, 2026; SCOTUSblog, July 29, 2026; Brennan Center, May 11, 2026 (advocacy; proposes the mechanism and publishes no public-opinion data). ↩

  9. No 119th-Congress bill or joint resolution imposing a Supreme Court supermajority was found; H.R. 4124 carries a supermajority provision for multi-circuit panels, requiring not less than 70% of judges to affirm a holding that an Act of Congress is invalid, not for the Supreme Court. The House Subcommittee on Courts heard testimony advocating a consensus requirement on May 21, 2026; no roll call, bill number or cross-party sponsorship was identified — H.R. 4124 (119th Congress); SCOTUSblog, July 29, 2026. ↩

  10. Six-item Supreme Court reform battery: ethics code 79%, maximum years of service 74%, expanding the Court 33%; two-thirds Senate supermajority to confirm a nominee 51% support / 20% oppose / 30% not sure — Republicans 44% support (31% oppose), independents 41% (17%), Democrats 71% (10%). A supermajority to strike down a law was not among the six items. n=1,127 adult citizens, May 4–6, 2026 — YouGov, toplines and crosstabs Q8/Q8D (PDF). ↩ ↩2

  11. “The Supreme Court has the power to review laws passed by Congress and to declare them invalid if they conflict with the Constitution”: 87% yes / 13% no — 87% R / 86% I / 86% D; n=1,018, Jan. 27–Feb. 6, 2025 — Marquette Law School Poll. ↩ ↩2 ↩3

  12. The Court has too much power: 30% — 17% R / 32% I / 42% D; “about the right amount” 49% overall, 68% R; n=1,127 adult citizens, May 4–6, 2026 — YouGov, crosstabs Q3, p. 11 (PDF). ↩ ↩2 ↩3

  13. The Court has too much power: 38% — 20% R / 56% D, up from 29% overall in April 2025; at least some confidence rose from 82% to 90% among Republicans and 35% to 43% among Democrats between 2022 and July 2025; n=1,437, July 10–14, 2025 — AP-NORC. ↩

  14. Supreme Court job approval 39% — 75% R / 34% I / 11% D, a 64-point party gap, the largest in Gallup’s trend and exceeding the 61-point record set after Dobbs; n=1,002, July 7–21, 2025 — Gallup. ↩ ↩2

  15. Thompson v. Heineman, 289 Neb. 798 (Jan. 9, 2015): four of seven judges held L.B. 1161 unconstitutional as an unlawful delegation, but because five did not so vote the statute stood — every judge who reached the constitutional question found the law invalid, and the law survived — Kathleen Miller, “The Fifth Judge,” Neb. L. Rev. Bulletin vol. 6 (2015). ↩ ↩2

  16. Bismarck Public School District No. 1 v. State, 511 N.W.2d 247, 250 (N.D. 1994): the school finance system was upheld despite three of five justices finding it violated the state constitution — Caminker, n.74. ↩

  17. The 1912 Ohio provision read: “No law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the court of appeals declaring a law unconstitutional and void.” The carve-out meant a 4–3 vote produced opposite results depending on how the lower court had ruled, leaving the law different in different parts of the state. In State v. Mapp, 167 N.E.2d 387 (Ohio 1960), four of seven justices would have sustained the challenge and the rule denied them the outcome — Caminker, pp. 90–91, nn.63, 67–70. ↩

  18. At least ten countries impose a supermajority for constitutional adjudication, typically in the constitution itself; South Korea has required six of nine since 1987, and one study counted 62 cases from 1987 to 2016 decided 4–5; Mexico generally requires 8 of 11 — Final Report, Dec. 2021, pp. 171–72. ↩

  19. “Whether Congress could impose some form of supermajority voting requirement on the Supreme Court without a constitutional amendment is a difficult question”; on the Exceptions and Regulations Clause, it “is less clear that this clause allows Congress to regulate decisionmaking procedures of the Court, as opposed to matters affecting its jurisdiction,” and such a rule would not reach original-jurisdiction cases, so the required majority “would depend on the route the case took to reach the Court” — Final Report, Dec. 2021, pp. 178–79. ↩

  20. Congress “has some authority to enact legislation affecting Supreme Court voting,” but “there is limited historical precedent for doing so, and the Constitution may impose limits,” and because no such proposal has been enacted “there is no Supreme Court precedent considering the scope of Congress’s authority in this area” — CRS IF13166, Feb. 10, 2026. ↩

  21. The Commission’s examples are Shelby County v. Holder (Section 4 of the Voting Rights Act) and United States v. Windsor (part of the Defense of Marriage Act), both 5–4 invalidations of federal statutes that “would have been decided otherwise under a supermajority voting rule” — Final Report, Dec. 2021, p. 176. ↩

  22. The Commission flags what a 5–4 vote means when six are needed and whether lower courts should follow the five or the four who control the outcome, and the evasion route by which a majority reaches its preferred result by construing a statute narrowly rather than invalidating it — Final Report, Dec. 2021, pp. 174–75, 177. ↩

  23. The 1924 Progressive Party platform asked for “a constitutional amendment providing that congress may by enacting a statute make it effective over a judicial veto” — an override, not a threshold — Progressive Party Platform, Nov. 4, 1924. ↩

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