Judicial ReEngineering

7. When the validity of an act of the Congress is drawn in question, and even
if a serious doubt of constitutionality is raised, it is a cardinal principle that
this Court will first ascertain whether a construction of the statute is fairly
possible by which the question may be avoided.
Statutory Limitations
Although the Supreme Court continues to review the constitutionality of statutes, Congress and
the states retain some power to influence what cases come before the Court. For example, the
Constitution at Article III, Section 2, gives Congress power to make exceptions to the Supreme
Court's appellate jurisdiction. The Supreme Court has historically acknowledged that its
appellate jurisdiction is defined by Congress, and thus Congress may have power to make some
legislative or executive actions unreviewable. This is known as jurisdiction stripping.
Another way for Congress to limit judicial review was tried in January 1868, when a bill was
proposed requiring a two-thirds majority of the Court in order to deem any Act of Congress
unconstitutional. The bill was approved by the House, 116 to 39. [67] That measure died in the
Senate, partly because the bill was unclear about how the bill's own constitutionality would be
decided. [68]
Many other bills have been proposed in Congress that would require a supermajority in order for
the justices to exercise judicial review. [69] During the early years of the United States, a twothirds
majority was necessary for the Supreme Court to exercise judicial review; because the
Court then consisted of six members, a simple majority and a two-thirds majority both required
four votes. [70] Currently, the constitutions of two states require a supermajority of supreme court
justices in order to exercise judicial review: Nebraska (five out of seven justices) and North
Dakota (four out of five justices).
In The Soviet Union
In modern Russia, aspects and directions of development of judicial reform were formulated in
the «Judicial Reform Concept», enacted by the Russian Parliament on October 24, 1991. This
document still remains legally valid and applicable.
Valery Zorkin stressed that "the «separation of powers» principle, also proclaimed in the
Constitution of the Russian Federation, requires observance of judicial independence. And such
independence requires proper funding of the courts and their activities. It is well known that
Russian courts remain under-funded. However, the cumulative economic costs suffered by both
state and private enterprises as the result of under-performance by various judicial institutions,
especially by the courts of general jurisdiction and the arbitration courts, is at least twice the
order of magnitude as the financial burden carried by the state and society in financing such
judicial institutions. The elimination of under-funding of the courts would definitely improve the
efficiency of their work and be worthwhile.
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