The United States Supreme Court and Judicial Review of Congress, 1803-2001

By Keith, Linda Camp | Judicature, January/February 2007 | Go to article overview

The United States Supreme Court and Judicial Review of Congress, 1803-2001


Keith, Linda Camp, Judicature


Judicial review has long been touted as a significant component of American constitutionalism and judicial independence generally. This power has been praised and criticized-praised as a "powerful barrier erected against the tyranny of political assemblies" (de Tocqueville) but criticized as being inherently undemocratic by constitutional scholars.1 Regardless of the normative debates, judicial review is arguably the U.S. Supreme Court's most potent power. In two centuries the Court has overturned as unconstitutional, in whole or in part, over 1,500 laws and ordinances passed by elected bodies across the United States. One hundred and fifty-five of the laws overturned were congressional statutes. The extent of this power is further illustrated by the finality of the Court's decisions in these nullifications. Congress has only succeeded in direcdy overturning four of these cases by passing an amendment to undo the Court's decision.2

Strangely, political scientists have given relatively little attention to this behavior beyond the context of constitutional case studies, doctrinal analysis, or normative theory; relatively few systematic empirical studies have been published. Two early behavioral works examined the policy influence of Court decisions to nullify legislation. Robert A. Dahl examined the influence of the Court on national policy and the antimajoritarian nature of judicial activism.3 He concluded that the Court does not have significant policy influence because it had been unable to hold out against the national majority or the other branches of the government for long, and in only a few important cases was it able to thwart or delay the national will. In 1976 Jonathan D. Casper updated Dahl's original analysis, which he criticized for its narrow focus that ignored statutes that were overturned after four years.4 He concluded that the Court was more influential than Dahl believed it to be.

While not a systematic empirical analysis like Dahl and Casper, Robert McCloskey's seminal work, which examined the evolution of the Court's exercise of judicial review across historical time periods, contributed significantly to our understanding of this behavior, and formed part of the theoretical basis for subsequent empirical studies such as Caldiera and McCrone's 1982 time series analysis.5 McCloskey largely concluded that the Court's politically astute use of this power under changing circumstances has insured its survival and strengthened the ability of the Court to be an active participant in American politics.

Caldiera and McCrone's time series analysis of the Supreme Court's nullification of federal or state statutes is the most extensive and rigorous descriptive study of the Court's exercise of judicial review. They discover a gradual but significant increase in nullifications over time following the Civil War and identify five distinct periods of activism: the late 1860s, Theodore Roosevelt's presidency, post-World War II, the 1920s and 1930s, and the 1960s. Their quantitative studies largely supported McCloskey's qualitative work. But while exploring deeply the time dimension, they make no other attempts at empirical explanations through the use of intervention or independent variables beyond that of the Civil War.

Champagne and Nagel considered the voting behavior of the four justices who are best known as strong advocates of judicial restraint: Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, and Harlan F. Stone. In their analysis of cases in which state, federal, or local statutes or ordinances were nullified during these justices' tenure on the Court, they found restraint varied with the justice's position on the Court, with the Court's make-up, and, more importantly, according to whose political preference would benefit from the decision, and concluded that judicial restraint was primarily "a smoke screen to mask political alliances and ideologies."6

Segal and Spaeth examined the Court's nullification of federal, state, and local laws and found, with only two exceptions, that "every justice displays an attitudinal pattern: They vote to uphold either conservative or liberal laws, but never both. …

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