Judicial Review by the Burger and Rehnquist Courts

Abstract

In this article, the authors assess various influences on U.S. Supreme Court justices' behavior in cases involving judicial review of federal, state, and local statutes. Focusing on challenges to the constitutionality of statutes considered by the Burger and Rehnquist Courts during the 1969 to 2000 terms, the authors evaluate the impact of attitudinal, institutional, and contextual variables on individual justices' votes to strike or uphold statutes challenged before the Court. The authors find that the justices' ideological responses to the challenged statutes, the extent of amicus support for the statute, the support of the solicitor general, congressional preferences, and the existence of a civil liberties challenge to the statute are all significantly related to the justices' votes to invalidate or uphold statutes. They also find that in the Rehnquist Court, conservative justices are less likely to strike state statutes but more likely to strike federal laws than their liberal counterparts, while no similar “federalism” dimension emerges in the Burger Court. Indeed, in the Burger Court, a distinct pattern emerges with conservative justices more restraintist than liberal justices in both state and federal cases.

Does Legal Doctrine Matter? Unpacking Law and Policy Preferences on the U.S. Supreme Court

“…Howard and Segal (2004) found White and Powell to be the most deferential to Congress. Finally, our findings are consistent with Lindquist and Solberg's (2007) finding that even though conservatives such as the Chief Justice were less likely to strike federal statutes during the Burger Court, during the Rehnquist Court conservatives were more likely to strike federal laws than their liberal counterparts.…”

Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model

“…Members of Congress are therefore likely to perceive a Court decision invalidating federal legislation as a direct threat to their own institutional authority, especially when the Court is ideologically distant from Congress. Thus while the justices are likely to be guided by their policy preferences in the choice to invalidate federal legislation (see Lindquist and Spill 2007; Segal and Spaeth 2002), they may also be sensitive to Congressional reaction to their decisions. Because Congress (in conjunction with the President) may affect the Court's institutional resources and power via the various mechanisms discussed above, in constitutional cases the Court has more to fear from Congress with respect to its institutional authority.…”

“…Given the theoretical and substantive importance of the issue, we propose a systematic test of Congressional influence in cases in which the constitutionality of a federal law is challenged before the Court. Our model moves beyond the Lindquist and Spill (2007) test of whether the preferences of the sitting Congress constrain the Court. Instead, we use Common Space (CS) scores, which are comparable across institutions and across time, 6 to create a more nuanced measure of Congressional preferences that specifically reflects the sitting Congress's preferences regarding the Congressional enactment at issue, even where that statute was enacted many years in the past.…”

“…In addition to the measures described above—which enable us to evaluate the extent to which Congressional preferences may constrain the Court's behavior in the exercise of judicial review—we must also account for the justices’ ideological response to the challenged enactment. Various methods are available to measure the justices’ attitudinal reaction to an enactment, including the simple direction of the statute at issue based on the directionality coding scheme in the United States Supreme Court Database (see Lindquist and Spill 2007). Rather than rely on the Spaeth database, we created a measure of the median justices’ preferences over the enacted legislation using the Judicial Common Space (JCS).…”

“…Martin's finding of presidential, but not Congressional, influence, remains puzzling, while Harvey and Friedman's limited period of time in their analysis (1987 to 2000) and their decision to use the length of time a Congressional statute survives do not allow for clear conclusions about the extent to which the Court is constrained in constitutional cases 4 . More recently, Lindquist and Spill (2007) present evidence suggesting that the Supreme Court's decisions in judicial review cases are determined in part by the ideological preferences of Congress, but they simply test whether the preferences of the sitting Congress constrain the Court and do not have measures of Congressional or Court preferences over the specific legislation at issue. Looking at the total number of bills struck down in a given term, Clark (2009) finds that the Court strikes down fewer laws when Congress considers an increasing amount of court‐curbing legislation.…”