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The New Supermajority: Judicial Review, Supermajority
Voting Rules, and the United States Supreme Court

Adviser: Christopher L. Eisgruber

Daniel E. Rauch

Politics

“Although our projects were deeply personal, they also were fundamentally communal. For nine months, each of us was engaged in a common academic project.”

rauch-daniel-eric

April 7, 2010. Bleary eyed, unshaven, I approach Corwin Hall to submit my thesis. For four years, I had wondered what this day would bring. Elation? Exhilaration? Exhaustion? Yet as I pass my new-bound books across the smooth, wooden desk, I feel something else: sadness. In the sunlit office of the Department of Politics, I begin to miss my thesis. 

Of course, I didn’t miss everything. Thesis writing can be brutally hard. Through senior year, I read more articles, edited more pages, and inhaled more Red Bull than in the rest of my life combined. When books were unavailable, printers broke down, or drafts mysteriously vanished, it was easy to despair (and satisfying to complain). Nevertheless, when the fated afternoon came, I was sorry to see it go. 

In retrospect, my reaction was unsurprising. Although my experience was often difficult, it also was, in many respects, deeply rewarding. First, by the time spring rolled around, I had settled on a topic I found fascinating—and fun—to write about. Early on, I expected to write a straightforward comparison of various court voting systems. By winter, however, I found myself defending a radical restructuring of the Supreme Court. In “The New Supermajority,” I argue that the Supreme Court should be unable to issue rulings without the agreement of six or more of its nine justices. Although such “supermajority” rules had been discussed in the past, the model I defended had never been proposed. New topic in hand, writing, reading, and researching became deeply enjoyable. In particular, I loved the fact that my topic allowed me to draw on disciplines from legal history to game theory to political philosophy, making for a creative experience.

Beyond finding a topic I enjoyed, I also had the good fortune to find a tremendously helpful adviser. Late in my junior year, I asked Provost Christopher Eisgruber to advise my thesis. On some levels, this was a surprising choice; up to that point, I had never taken a course with the provost. Indeed, prior to junior year I’d never even met him. Despite this, I ultimately took a chance and requested a meeting. Going in, I expected to exchange pleasantries and, if time allowed, vaguely discuss my academic interests. Instead, at our first meeting, the provost grilled me on constitutional theory, earlier academic projects, and the specific framework I envisioned for my thesis. I was hooked. 

In the months that followed, I would be held to an extraordinarily high standard. Drafts I had considered solid were, with alarming regularity, cut to shreds. Importantly, Provost Eisgruber focused not merely on the rigor of my argument, but also on the quality of my writing. Each week, I was pushed to bring clear, concise, and forceful language to my thesis and to take the passive voice out. Yet although he was tough on my work, the provost also was incredibly considerate, offering help and advice on everything from constitutional law to life after graduation. So, if I felt regret this April, it was largely because I would no longer be Provost Eisgruber’s advisee. 

Ultimately, however, I came to see my thesis as something deeper: a vital connection to my Class of 2010. For three years, each of us led very different lives; we joined different organizations, studied different subjects, and pursued different ideals. Yet despite this diversity, throughout our senior year, each of us was united by our single shared endeavor. This may seem counterintuitive. After all, much of the thesis process is deeply individual—hours of typing in semi-secluded carrels. Yet although our projects were deeply personal, they also were fundamentally communal. For nine months, each of us was engaged in a common academic project. For nine months, from late nights in the computer lab to midnight runs to Hoagie Haven to frantic mornings with binding services, I felt a close connection to my haggard classmates. On that April morning, then, I knew that I was losing an unexpectedly wonderful quasicommunity. 

Yet although I was forced to relinquish my thesis, there is much that I was able to hold on to. On a personal level, the work I have done inspired me to revise my academic interests and to more carefully consider a career in academia. Intellectually, the skills and knowledge that I learned through this process will be vital in any field I choose to enter. Perhaps most importantly, however, the thesis serves as a connection to generations of fellow Princetonians. I did not grasp this truth until the bizarre blur of Princeton Reunions. That week, as I met Princetonians from across the chronological spectrum, I was struck by how often the conversation drifted to the thesis. From the Class of 2009 to the Class of 1929, alumni would spontaneously recall the triumphs and tribulations of their senior projects. At the risk of overstatement, the thesis served as a bridge across the decades, linking each of us to one another and to our alma mater. Ultimately, this sense of shared experience may be the most valuable reward of the entire process, allowing each of us to be part of something much greater than ourselves. Failing that, it makes for an excellent conversation starter. 

Before closing, some words of advice. First, don’t be afraid to change your topic. If you have an argument you love, the thesis will research and write itself. If you have a topic you loathe, your efforts will feel wasted. Second, find a way to keep yourself on pace. Whether this means setting aside specific hours for writing, choosing an adviser who will set hard deadlines, or pledging to write a certain number of pages each night, make sure that you are always making progress. The thesis is too big for any one all-nighter (a fact I learned the hard way). Third, make the thesis your own. As a senior, you will spend hundreds—if not thousands—of hours with your thesis. If you aren’t having a good time writing, it will be a very long year. And of course, when your own fated April day comes, and you hand your thesis across a smooth table, do something fun. By all means feel sorry, but also feel ecstatic. You’ll have earned it.

The New Supermajority: Judicial Review, Supermajority
Voting Rules, and the United States Supreme Court

Daniel E. Rauch

Christopher L. Eisgruber

Provost and Laurance S. Rockefeller Professor
of Public Affairs in the Woodrow Wilson School
and the University Center for Human Values

“... Daniel’s thesis managed to illuminate the theoretical foundations of judicial review in new ways—no mean feat for any scholar, especially a college senior.”

Daniel Rauch’s breakthrough seemed like a blunder. It was February, and Daniel was in my office, explaining an idea that had occurred to him over the last week. Up until that point, Daniel had done lots of things right. He began thinking about the thesis early, in the summer after his junior year. By the time September ended, he had a well-defined topic. He finished a chapter in December, and it was a good one—a masterful historical study that surveyed the existing literature and built a solid foundation for the analysis to come. And now, he said, he had a new argument that would form the core of his thesis. He was excited, and I was worried, because I did not think the idea would work.

It was not the first time that I had doubted Daniel’s instincts. When he first approached me about supervising his work, he said that he wanted to do a thesis on one of the most fundamental questions in constitutional law, the so-called “counter-majoritarian” difficulty: Why should unelected judges have the power to trump the judgments of the people’s elected representatives? It’s not an easy thesis topic—dozens of professors have devoted careers to the question, and Daniel had less than a year to write a thesis about it.

I was inclined to nudge him in a less ambitious direction. I also was tempted to point him toward another supervisor—my duties as provost leave me with very little time to supervise students. Daniel had left me with a copy of his junior paper, though, so I skimmed it, thinking it would seal my decision.

I soon stopped skimming and began really reading. The prose was clean and clear, and the argument was dazzling. Daniel had taken a much debated question—should the American Supreme Court look at foreign legal materials when deciding constitutional cases?—and developed a novel take on it. He analogized the Supreme Court’s use of foreign law to what state supreme courts do when they borrow precedents from other states. It was a clever argument, and Daniel’s execution of it showed that he knew the background literature as well as any undergraduate I have ever encountered.

“Okay,” I told him, “I’ll supervise the thesis, but we have to narrow the topic.” Eventually, we agreed that he would analyze one specific response to the counter-majoritarian difficulty: proposals to require six votes, instead of just five, to find a law unconstitutional. The idea behind the proposals was to make it a little harder for courts to strike down laws, so that they deferred to legislatures more often and only intervened when laws were particularly outrageous.

The topic was just about perfect. There were a handful of articles about it, so that Daniel did not need to start from scratch, but not too many, so he would not be overwhelmed. Even better, the articles made some puzzling claims, so Daniel could begin by filling the gaps in those arguments—or widening the holes in them, as he preferred.

He started energetically, and I expected smooth sailing. Then came the February meeting. Daniel had an idea for a completely different voting rule, one that required at least six votes for any constitutional result, regardless of whether the court was upholding a law or striking it down. Basically, he was substituting a two-way supermajority requirement for a one-way rule. Nobody else had ever suggested the two-way rule, and I thought there was an obvious reason: Lots of cases would end up in deadlock, with five votes on one side, four votes on the other, and no decision either way.

I pointed out this problem to Daniel, who was undeterred. Five to four cases were relatively rare, he said, and he thought that they would be even less common under his voting rule—the risk of deadlock would give justices an incentive to find common ground. “But sometimes they won’t,” I persisted. “What then?” In those cases, Daniel suggested, the decision of the lower court would stand, and the country would have no settled law until the justices eventually coalesced around a six-justice majority.

I tried patiently to explain the legal chaos that might result, with different interpretations of the Constitution prevailing in different regions. I expected Daniel to relent in the face of the argument, but he did not. State law differs from place to place, he observed; would regional differences in national law be so bad?

By the end of the meeting, I was still skeptical about Daniel’s proposal, but I realized that it had more going for it than I first appreciated. I encouraged him to write it up. Because he was running ahead of schedule, he had time to play with the idea—if he had to back off, he could still produce an excellent thesis.

As Daniel developed the argument over the next few weeks, he won me over. He did not convince me that the two-way rule was a good idea—but he convinced me that it was a better idea than the one-way voting rule he had originally been analyzing. The two-way rule aligned judicial review with the logic of constitutional amendment, which requires big supermajorities for any change to the Constitution. By exploiting this parallel, Daniel’s thesis managed to illuminate the theoretical foundations of judicial review in new ways—no mean feat for any scholar, especially a college senior.

A Princeton senior has to be not only smart and hardworking but also lucky to come up with an insight like the one that made Daniel’s thesis sparkle. If you’re smart and hardworking, though, you’re also more likely to be lucky. In a field such as biology or history, the connection is obvious: The student who runs experiments repeatedly and carefully, or the student who spends day after day in the archives, is more likely to make a startling discovery. Something like that is true in constitutional and political theory, too. If you keep examining possibilities and distinctions with imagination and rigor, if you report your thoughts and observations with clarity and precision, then you put yourself in a position to glimpse something truly unexpected, to have the intuition that converts a good article into a great one.

Meticulous study is at the heart of the scholarly enterprise, and it is rewarding for a thesis supervisor to see a student develop an authentic appreciation for that endeavor, even if no brilliant “eureka” moment comes along. When it does, though, and when a student puts it all together the way that Daniel did, the results are unforgettable.