Supreme Court

How Much Deference Does SCOTUS Owe to Congress?

Should it take more than a 5–4 vote for the Supreme Court to strike down a federal law?

Damon Root | 5.14.2026 7:00 AM

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In 1893, a Harvard law professor named James Bradley Thayer published one of the most influential articles in U.S. legal history. "The Origin and Scope of the American Doctraine of Constitutional Law" made a sweeping case for the doctrine of judicial deference, arguing that the U.S. Supreme Court was almost always out of bounds when it struck down an act of Congress for violating the Constitution. According to Thayer, a federal statute should only be invalidated on constitutional grounds in those extremely rare cases in which "those who have the right to make laws have not merely made a mistake, but have made a very clear one—so clear that it is not open to rational question."

Thayer understood that his approach, if faithfully adopted, would mostly eliminate the federal judiciary's ability to review federal laws on constitutional grounds. And he was just fine with that, since he thought federal judges should mostly butt out of such cases anyway, on account of the vast deference the judiciary owed "to the practical judgment of a legislative body."

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