In a recent Vox.com interview with Harvard legal scholar Mark Tushnet, Dr. Tushnet presented his ideas to journalist Sean Illing:
How unusual is it for a liberal democratic system like ours to allow judges to overturn laws outright?
In the modern era, since the middle of the 20th century or so, this has become a pretty common role for courts worldwide. There are important variations in the way countries do it, however. And, in particular, since the late 20th century, constitutional designers and implementers have switched from a US style, where the court has the last word and there is nothing you can do about it, to a system that allows for what legal scholars call a more “dialogic” process — which basically means there’s an interactive process between the court and the legislature.
And how does that kind of system work?
The idea is that the legislature passes a law, the court says it’s unconstitutional for this or that reason, and then the legislature has an opportunity to respond to the court. In some cases, the legislature will just say, “We understand your reasons, but we disagree with them, and we’re going to go forward with the policy anyway.”
Do you think we’d be better off if we abolished the Supreme Court in its current manifestation and moved to a more balanced system like the one you just described?
Yeah, I do. I’m a big fan of the dialogic approach.
Dr. Tushnet seems to be concerned about the Supreme Court's unassailable ability to strike down laws. He proposes several other options, as well, for those who don't like the current make-up...but he didn't bring up the recourse that the United States has had since the 1780's: amending the Constitution.
Why is amending the Constitution not part of Dr. Tushnet's toolkit for improving US jurisprudence?