Minority Control of Court Decisions in Ohio

The experience of Ohio with the requirement of concurrence of an extraordinary majority of the Supreme Court to declare a statute invalid is an illuminating commentary on the desirability of such a restriction. Much has been spoken and written on both sides of the question. Those who have seen laws embodying worth-while reforms invalidated by the courts, many times by bare majority decisions, have campaigned for a curtailment of the judicial prerogative. Publicists have expatiated on the evils of the situation. Textbook writers have embodied the arguments in their discussions. Teachers, it is to be feared, have quite glibly enlarged upon the necessity of unseating our “judicial obligarchy.”The late President Theodore Roosevelt, addressing the Ohio constitutional convention in 1912, urged that body to propose an amendment providing for the recall of judicial decisions. He failed to convince the convention of the desirability of his remedy, but he succeeded in creating a feeling that something must be done; and an amendment to the judiciary article was adopted, reading as follows: “No law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the court of appeals declaring the law unconstitutional and void.” Since the Supreme Court is composed of a chief justice and six associate justices, the restriction amounts to a requirement of the concurrence of six justices in decisions of this kind.