A Preference for Deference? the Supreme Court and Judicial Review
Howard, Robert M., Segal, Jeffrey A., Political Research Quarterly
The power of the Supreme Court to declare laws unconstitutional remains as troubling today as when first introduced in Marbury v. Madison. While the normative arguments will perhaps always remain unsettled, the empirical question of when and how often justices actually use this power also continues unanswered. Using data derived from briefs filed by litigants over ten terms, we develop systematic tests of how requests for judicial review of state and federal laws influence U.S. Supreme Court justices. We find that while many appear to base their decisions to strike or uphold state or federal laws on ideological considerations, the Court itself can be called restraintist in that it never appears to strike laws sua sponte, and most requests for the review are voted down. Finally, we find little evidence of strategic considerations in the justices' decisions.
Since the Supreme Court first declared an act of Congress unconstitutional in Marbury v. Madison (1803), few assertions of judicial power have remained as troubling or as controversial as the power of judicial review. The ability to declare laws enacted by duly elected officials unconstitutional has provoked scholarly inquiry, academic debate, and even political outcry. Constitutional scholars have long argued over the propriety of this counter-majoritarian power, with most normative theorists (e.g., Hand 1959 and Wechsler 1961), empirical researchers (e.g., Segal and Spaeth 1993: 299), and even leading political figures asserting that, in general, courts should defer to the will of the democratic majority. Given the Court's insulation from the popular will, it should not lightly strike democratically enacted legislation.
Despite this belief, few argue that the Court should lack this capability. Although seemingly countermajoritarian, judicial review remains at the heart of the Courts ability to protect the interests of unpopular majorities. Nevertheless, how the Court should use this power, and how often it actually does use this power, remain as unsettled today as it did in the time of Marshall, Marbury, and Madison. One may legitimately assert that the most important normative and empirical judicial questions surround judicial review, and they still remain unanswered.
While it is not our intent to provide the normative answer, we do believe, though, that we can add to the empirical debate, which then will have implications for the normative debate. We start by noting that while judicial review is a well-studied subject, most empirical studies locus exclusively on the exercise of such power. However, to focus simply on the exercise of such power is similar to focusing only on the numerator of an equation. We want to examine not just the exercise of such power, but also the denominator of the equation-the opportunity for the Court to exercise the power of judicial review
Failure to examine requests leaves several important questions unanswered. For example, without examining requests, we do not know if the Court strikes laws sua sponte. If not, litigant requests are a necessary condition for such action, and litigant briefs are the single best source of such information (see George and Epstein 1992; Epstein and Kobylka 1992; Kort 1963; Songer and Haire 1992). The reaction of the justices to such requests should help illuminate this crucial aspect of judicial restraint.
Given this, it is surprising that there are almost no systematic examinations of how the Court reads to requests to exercise judicial review. In this manuscript, we bring systematic social-scientific evidence to bear on how justices react to litigant requests to review the constitutionality of state and federal laws, with particular attention to the ideological direction of the request. We also examine issues of sua sponte review and the role of the political environment.
The most gripping examples of judicial activism are decisions to declare unconstitutional laws of congress and the state legislatures. …