Judicial Review by the Burger and Rehnquist Courts: Explaining Justices' Responses to Constitutional Challenges

Article excerpt

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.

Keywords: judicial review; federalism; constitutional challenges; U.S. Supreme Court

1. Introduction

Scholars of judicial politics and law have demonstrated a continuing fascination with the "countermajoritarian difficulty" posed by the institutional position and characteristics of the U.S. Supreme Court within American democracy (see Friedman 2002). Since the Court's decision in Marbury v. Madison (1803),' many academics and politicians have lamented the tension between democratic governance and an unelected judiciary's exercise of judicial review. As Friedman (2002) pointed out, criticism of the Court's exercise of judicial review has emerged both from the Right and the Left, depending on the historical context. Recent decisions by the Rehnquist Court striking down progressive legislation like the Violence against Women Act,2 for example, have drawn criticism from liberals; the Warren Court's decisions in the area of criminal rights and civil liberties drew the wrath of many conservatives.

Without question, the Court's authority to review the constitutionality of legislative enactments is among its most important powers. A decision to invalidate a federal statute often raises issues related to separation of powers and democratic theory (see, e.g., Dahl 1957; Bickel 1986; Ely 1980; Choper 1980). On the other hand, when the Court invalidates state or local legislation under the U.S. Constitution, its decision implicates issues of federalism and the scope of state sovereignty and autonomy. Thus, decisions involving constitutional challenges to federal, state, or local laws are often among the most politically sensitive and consequential acts the Court can undertake and continue to provide fuel for the debate regarding the proper role of the Supreme Court and the appropriate application of its power.

While much has been theorized regarding the implications and consequences of the use of judicial review, less is known about the likelihood of the application of this considerable power by the individual justices. What factors lead the justices to eschew deference and strike a law promulgated by a duly elected body? What factors motivate the justices to restrain their personal preferences and bow to the will of a majority? In this article, we seek to evaluate the influences that affect the individual justices' choices to strike or uphold federal, state, or local statutes and ordinances. We explore the individual justices' responses to such constitutional challenges brought in 238 cases during fifteen terms of the Rehnquist Court (19862000) and 458 such constitutional challenges brought during the sixteen terms of the Burger Court (19691985). We also compare the manner in which the Burger and Rehnquist Courts have exercised this significant power. …