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Is a 5-4 Ruling Really Enough to Undo Laws?
In the past five years the U.S. Supreme Court has addressed some of the nation’s most controversial issues, overturning acts of Congress by 5-4 majorities.
Many of these decisions have invalidated high-profile laws, including portions of the Voting Rights Act in Shelby County v. Holder, the section of the Defense of Marriage Act defining “spouse” to exclude same-sex partners in United States v. Windsor, and the section of the Bipartisan Campaign Reform Act restricting political contributions by corporations in Citizens United v. Federal Election Commission. In fact, on average over the previous five years, the Supreme Court has found at least one federal statute, or a portion thereof, to be unconstitutional by a one-vote majority. Now, a challenge to the Affordable Care Act, with constitutional implications, is pending before the court.
The rash of slim-majority decisions striking down statutes as unconstitutional is a relatively recent development. The court struck down federal statutes by a one-vote majority only 24 times from the court’s founding through the Burger court in 1986, and 12 of those were decisions by the Warren and Burger courts. Since then, however, the Rehnquist court struck down federal statues by one vote 20 times, and the Roberts court, to date, has done this nine times.
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