United States Supreme Court and judicial review …lck016000/JudicatureUSSCT.pdf · The United States Supreme Court and judicial review ... Figure 1. The annual number of cases of

166 JUDICATURE Volume 90, Number 4 January-February 2007

Judicial review has longbeen touted as a signifi-cant component of

American constitutionalismand judicial independencegenerally. This power has beenpraised and criticized—praisedas a “powerful barrier erected against the tyranny of politi-cal assemblies” (de Tocqueville) but criticized as beinginherently undemocratic by constitutional scholars.1

Regardless of the normative debates, judicial review isarguably the U.S. Supreme Court’s most potent power. Intwo centuries the Court has overturned as unconstitutional,in whole or in part, over 1,500 laws and ordinances passedby elected bodies across the United States. One hundredand fifty-five of the laws overturned were congressional

statutes. The extent of thispower is further illustrated bythe finality of the Court’s deci-sions in these nullifications.Congress has only succeededin directly overturning four ofthese cases by passing an

amendment to undo the Court’s decision.2

Strangely, political scientists have given relatively little

This research was funded by a sabbatical grant at Collin College, Plano,TX.

1. Alexis de Tocqueville, DEMOCRACY IN AMERICA, ed. J.P. Mayer (New York:Harper Press, 1996); Alexander Bickel, THE LEAST DANGEROUS BRANCH (NewHaven: Yale University Press, 1962); John Ely, DEMOCRACY AND DISTRUST: ATHEORY OF JUDICIAL REVIEW (Cambridge: Harvard University Press, 1980; andRichard Parker, The Past of Constitutional Theory—And Its Future 42 OHIO ST. L.REV. 233 (1981).

Despite an increase in the number of nullifications of congressional actions

following the Civil War, the dominant trendacross the Court’s history remains

one of supporting Congress.

by LINDA CAMP KEITH

The United States Supreme

Court and judicial review

of Congress, 1803-2001

The United States Supreme

Court and judicial review

of Congress,1803-2001

Marshall Fuller Taft Warren Rehnquist

www.ajs.org JUDICATURE 167

attention to this behavior beyond thecontext of constitutional case stud-ies, doctrinal analysis, or normativetheory; relatively few systematicempirical studies have been pub-lished. Two early behavioral worksexamined the policy influence ofCourt decisions to nullify legislation.Robert A. Dahl examined the influ-ence of the Court on national policyand the antimajoritarian nature ofjudicial activism.3 He concluded that

the Court does not have significantpolicy influence because it had beenunable to hold out against thenational majority or the otherbranches of the government forlong, and in only a few importantcases was it able to thwart or delaythe national will. In 1976 JonathanD. Casper updated Dahl’s originalanalysis, which he criticized for itsnarrow focus that ignored statutesthat were overturned after fouryears.5 He concluded that the Courtwas more influential than Dahlbelieved it to be.

While not a systematic empiricalanalysis like Dahl and Casper, RobertMcCloskey’s seminal work, whichexamined the evolution of theCourt’s exercise of judicial reviewacross historical time periods, con-tributed significantly to our under-standing of this behavior, and formedpart of the theoretical basis for subse-quent empirical studies such asCaldiera and McCrone’s 1982 timeseries analysis.5 McCloskey largelyconcluded that the Court’s politicallyastute use of this power under chang-ing circumstances has insured its sur-vival and strengthened the ability ofthe Court to be an active participant

in American politics. Caldiera and McCrone’s time

series analysis of the SupremeCourt’s nullification of federal orstate statutes is the most extensiveand rigorous descriptive study of theCourt’s exercise of judicial review.They discover a gradual but signifi-cant increase in nullifications overtime following the Civil War andidentify five distinct periods ofactivism: the late 1860s, TheodoreRoosevelt’s presidency, post-WorldWar II, the 1920s and 1930s, and the1960s. Their quantitative studieslargely supported McCloskey’s quali-tative work. But while exploringdeeply the time dimension, theymake no other attempts at empiricalexplanations through the use ofintervention or independent vari-ables beyond that of the Civil War.

Champagne and Nagel consideredthe voting behavior of the four jus-tices who are best known as strongadvocates of judicial restraint: OliverWendell Holmes, Louis Brandeis,Felix Frankfurter, and Harlan F.Stone. In their analysis of cases inwhich state, federal, or local statutesor ordinances were nullified duringthese justices’ tenure on the Court,

2. The Eleventh Amendment undid Chisholm v.Georgia, 2 Dall. (2 U.S.) 419 (1793), which hadruled citizens could sue a state other than theirown state; the Fourteenth Amendment undidDred Scott v. Sandford, 19 How. (60 U.S.) 393(1857); the Sixteenth Amendment undid Pollockv. Farmers’ Loan and Trust Company, 157 U.S. 429(1895), which had declared a federal income taxunconstitutional; and the Twenty-Sixth Amend-ment, which gave 18 year-olds the right to vote,undid Oregon v. Mitchell, 400 U.S. 112 (1970).

3. Robert A. Dahl, Decision-Making in a Democ-racy: The Supreme Court as a National Policy Maker. 6J. PUB. L. 279-295 (1957) and Robert A. Dahl, PLU-RALIST DEMOCRACY IN THE UNITED STATES (Chicago:Rand McNally & Company, 1967).

4. Jonathan D. Casper, The Supreme Court andNational Policy Making. 70 AM. POL. SCI. REV. 50-63(1976).

5. Robert G. McCloskey, THE AMERICAN SUPREMECOURT (Chicago: University of Chicago Press,1994); Gregory A. Caldiera and Donald J.McCrone, Of Time and Judicial Activism: A Study ofthe U.S. Supreme Court, 1800-1973 in Stephen C.Halpern and Charles M. Lamb, eds. SUPREMECOURT ACTIVISM AND RESTRAINT (Lexington, MA:Lexington Books, 1982).

Figure 1. The annual number of cases of judicial

review of Congress (1803–2001)


they found restraint varied with thejustice’s position on the Court, withthe Court’s make-up, and, moreimportantly, according to whosepolitical preference would benefitfrom the decision, and concludedthat judicial restraint was primarily“a smoke screen to mask politicalalliances and ideologies.”6

Segal and Spaeth examined theCourt’s nullification of federal, state,and local laws and found, with onlytwo exceptions, that “every justice dis-plays an attitudinal pattern: They voteto uphold either conservative or lib-eral laws, but never both.7 While eachof the above studies have contributedto our understanding of the SupremeCourt’s exercise of judicial review,they have been limited in that theyexamined only the set of cases inwhich the Court decided to nullifystate or congressional statutes, leavingunexamined the larger body of casesin which the Court upheld the laws.

In light of the obvious significanceof this behavior, the need for moresystematic empirically based analysisis evident. Ultimately this researchseeks to build upon these previousquantitative studies by examiningthe full set of Supreme Court opin-ions involving judicial review of con-gressional statutes. In particular, thisarticle makes a first step at buildingupon the descriptive empirical workof Caldeira and McCrone and thequalitative work of McCloskey.8

Cases While lists of the Supreme Court’s nul-lification of congressional statutesacross its two-century history arewidely available in archived sources,there are no similar lists of cases inwhich the Supreme Court upheld thestatute. Harold Spaeth’s widely usedU.S. Supreme Court Judicial Data Basedoes include a variable that can besearched to identify cases from the1946 term forward in which theSupreme Court determined the con-stitutionality of national governmentaction; Spaeth’s source is the individ-ual case syllabus. For the years 1947-2001 I was able to identify 336 suchcases.9 I have expanded backwards thedataset to cover all years prior to 1947,

following Spaeth’s guidelines so thatmy data will be consistent with his.10

I conducted LEXIS key wordsearches of all Supreme Court syllabiprior to 1947 to identify cases thatdetermined the constitutionality ofCongress’s actions. In order to dothe most comprehensive and appro-priate word searches, I generated alist of key word pairings by reading1) the syllabi of cases identified inSpaeth’s dataset as determining con-stitutionality of federal action and 2)cases identified in Library of Con-gress lists as nullification cases.11

I ran key word searches on case syl-labi to identify potential cases until Ireached the point that multiplesearches repeatedly failed to produceany new hits. I read all cases that werehits and culled out those where theCourt actually determined the consti-tutionality of congressional action.12

The result was 560 cases. Then, I con-ducted a double check based onLEXIS headnotes rather than syllabi toinsure that my search was exhaustive.I selected random years in eachdecade and reviewed the LEXISheadnotes for all cases in each of thoseindividual years. Through this processI verified that for each of the randomyears no constitutional cases weremissed. Combining my set of caseswith those identified through theSpaeth data base produces 896

Supreme Court cases that review con-gressional statutes.

Judicial review across timeFigure 1 presents the annual num-ber of Supreme Court opinionsreviewing the constitutionality ofcongressional action. The firstobservable trend is a rise in the num-ber of cases following the Civil War.The mean number of congressionalreview cases prior to 1865 is only .2per year, while in the followingperiod (1865 through 2001) themean is remarkably higher at 6.58per year. This pattern fits Caldeiraand McCrone’s conclusion that theend of the Civil War marks the “solid-ification” or “institutionalization ofthe Court’s power to negate actionsof the legislative departments.”13

Even though the data here repre-sent all opinions involving judicialreview, the observable patterns stillparallel those of Caldeira andMcCrone. The periods of increasedjudicial review generally parallel theperiods of increased nullifications:“the late 1860s; during the adminis-tration of Theodore Roosevelt; afterWorld War I; during the 1920s and1930s; and during the 1960s, a cyclethat has not yet begun its decline.”14 Ialso find that the general trend hasbeen toward overall growth in judi-cial review as Caldeira and McCrone

operationalization of the Spaeth variable does notdistinguish the type or level of federal actionreviewed in the case. In this data set and my analy-sis I have deliberately chosen to use the calendaryear rather than the Supreme Court’s term as apoint of reference, which follows Caldeira andMcCrone. I made this choice because ultimately Iam trying to identify trends overtime and to linkthese trends to events in U.S. history, particularly inregard to partisan politics in the Congress andpresidency. Changes in Congress and the presi-dency coincide almost perfectly with the calendaryear for most of the history under study here. Butsince the Supreme Court’s term begins in Octoberand only represents three months of the calendaryear it is rather problematic to say that those threemonths represent the entire year.

10. Since Spaeth’s dataset covers the 1946 termrather than the year 1946 his dataset onlyincluded three months of 1946, so I have read andcoded the entire year of 1946 myself.

11. The key word searches included suchphrases as unconstitutional and Congress, Con-gress and constitutional or constitution, Congressand power, act and constitution/constitutional orunconstitutional, statute(s) unconstitutional orconstitutional/constitution, Congress and compe-tent, violation and congress/act, (in)valid andCongress, (in)valid and act, act and violate, statuteand infamous, act and infamous, constitutionality,infringe or abridge and amendment.

6. Anthony Champagne and Stuart S. Nagel,The Advocates of Restraint: Holmes, Brandeis, Stone,and Frankfurter in Halpern and Lamb, id.

7. Jeffrey A. Segal and Harold J. Spaeth, THESUPREME COURT AND THE ATTITUDINAL MODEL (Cam-bridge: Cambridge University Press, 1993) and Jef-frey A. Segal and Harold J. Spaeth, THE SUPREMECOURT AND THE ATTITUDINAL MODEL REVISITED(Cambridge: Cambridge University Press, 2002).

8. Bruce Ackerman’s three republics generallyfit the time periods identified by McCloskey buthis goal is to make an argument for dualistdemocracy, and his focus is not exclusively on theCourt’s exercise of judicial review but rather onthe broad range of the Court’s behavior, makinghis observations extremely difficult to fit withinthe context of this initial descriptive analysis. OnlyMcCloskey’s work has the narrow exclusive focuson the exercise of the power of judicial review,which made his seminal work the appropriate andunique marker for Caldeira and McCrone and forthis set of analyses as well. See Bruce Ackerman,WE THE PEOPLE: FOUNDATIONS (Cambridge: Har-vard University Press, 1991).

9. To conduct this search I sorted the datasetand culled out all observations that were codedwhere AUTHDEC1 and AUTHDEC2 were equal to one. This pulls out all cases in which the Courtengaged in judicial review at the national level. Ithen had to read each of these cases in order toidentify the false positives that were selected, as the


found in regard to nullifications;however, unlike their study the data

here do indicate that the cycles ofjudicial review become more and

more extreme. It should be notedthough that their study did notextend beyond 1973.

Figures 2-6 provide a closer exami-nation of the judicial review cases bydividing them into those that nulli-fied congressional action and thosethat upheld congressional actionand by examining each of the timeperiods more closely. Figure 2depicts the period 1803-1864. As iscommonly known, the SupremeCourt, after establishing judicialreview in Marbury v. Madison in 1803,did not use the power of judicialreview again to nullify a congres-sional statute until Dred Scott in 1856.Less well known is the fact that dur-ing this period the Supreme Courtconsidered questions of constitution-ality in 11 other cases challengingcongressional action. In each ofthese, the Court upheld the congres-sional statute. Thus we find addi-tional evidence of the restraintexercised by both the Marshall andTaney Courts.

McCloskey argues that despiterather bold actions by Chief JusticeMarshall, he exercised substantialrestraint, recognizing that the Courtmust slowly gain national acceptancefor the power of judicial review—

12. Ultimately I am examining the Court’s ownwords in the arguments of the opinion to answerthe question—did the “majority determine the con-stitutionality” of the congressional statute at issue indisposing of the case. This follows Spaeth’s codingrules. Thus, cases in which the Court dismissed ontechnicalities (lack of jurisdiction, lack of standing,lack of actual controversy) were not included in thedataset. In regard to Ashwander-type principles(which the Court actually discusses in many casesprior to Ashwander—Brandeis gives full citation ofthese in his Ashwander concurring footnote), I fol-lowed as consistently as possible the language of theCourt’s opinion itself and Spaeth’s rule. Obviously,in regard to the Spaeth data, he and his codersmade the final call, and I cannot know how manycases they rejected in their coding. However, inregard to the pre-Spaeth data I made the final call,and tried to employ logic that was consistent withthe intent of the Spaeth rule. For the 1803-1946period I had a relatively small number of cases, 31of 567, in which I had to deal with Ashwander-typeissues. Of these 31, 16 were rejected from thedataset and 15 were accepted, an even split.

Of the 16 cases that were rejected, there weregenerally three or four types of reasoning in theopinion that I felt did not fit the decision rulehere. First, the Court argues that it cannot or willnot deal with the constitutional issue because thecourt below made no mention of the constitu-tional questions. Additionally, I rejected cases inwhich the Court dismisses the constitutional issueas a frivolous federal question. I also rejectedcases in which the Court digged the case—dis-missing as improvidently granted. Finally, Irejected cases in which even though the constitu-tionality of a congressional statute is raised, theCourt says that it does not consider it herebecause there are other grounds upon which thecase may be disposed of. Again, I believe thesedecisions are consistent with Spaeth’s rule aswhether the majority determined the constitu-tionality of the statute.

Of the 15 cases that were included in the dataset,the cases were generally dealing with Ashwander-type reasoning, in which the Court has said “Whenthe validity of an act of the Congress is drawn intoquestion, and even if a serious doubt of constitu-tionality is raised, it is the cardinal principle that thisCourt will ascertain whether a construction of thestatute is fairly possible by which the question maybe avoided.” If we take this principle literally, itappears that such language would put a case in thecategory above. And the cases would be rejected.However, in regard to these cases, when the lan-guage of the opinion is examined closely, what theCourt is ultimately deciding is whether the statutecan be construed to avoid the claim of unconstitu-tionality—construed to be constitutional. And thuswe see language in which a judgment of constitu-tionality is actually expressed by the Court. Forexample, the opinion in Bingham v. U.S. (1935) saysthat “acts of Congress are to be construed, if possi-ble to avoid grave doubts of their constitutionality”and then goes on to conclude with the language “Soconstrued, Section 402(f) is constitutional.” InBecker v .Cummings Steel (1935) we see the language“any other construction… would raise grave doubtsof the constitutionality of the statute as applied tonon-enemies.” This language implies a judgmentthat as constructed the act is constitutional andupheld. And in Reineche v. Northern Trust Company(1929) we actually see the language referring to thestatute being upheld: “Doubts of constitutionality ofthe statute, if construed as contended by the gov-ernment, would require us to adopt the construc-tion, at least reasonably possible here, which woulduphold the act.” Again, the key guideline was toexamine fully the language of the Court usedthroughout the opinion. And in this set of 15 cases,the Court was construing a statute to avoid findinga statute unconstitutional, and in construing thestatute thusly, was in fact “determining the statute tobe constitutional” which fits the Spaeth rule.

13. Caldeira and McCrone, supra, n. 5, at 116.14. Id. at 113.

Figure 2. Frequencies of supreme court judicial


John Marshall Chief Justice, 1801-1835


that the power had to “be nourishedand cultivated” in order to grow intoa nationally accepted doctrine ofjudicial sovereignty.15 McCloskey alsoposits that the Taney Court for a longtime, too, “recognized the need toslow the pace of [the Court’s] consti-tution-making process so that Amer-ica could grow used to the house thatJohn Marshall had built” and inorder for the judicial power to be“consolidated.”16

With the Dred Scott decision theTaney Court abandoned this protec-tive restraint and severely weakenedthe foundation of the Court’s power,the principle of national sovereignty.During the Civil War the SupremeCourt ducked salient constitutionalissues, such as presidential war pow-ers and civilians being tried in mili-tary courts, based on jurisdictionalgrounds. McCloskey argues that theCivil War demonstrated that “theexperiment of an independent and

influential national judiciary hadfailed.”17 He accepts this outcome asinevitable, arguing that “war is nevera favorable environment for judicialpower” because war is characterizedby emotion and quick, drasticactions and courts are not wellequipped to deal with either.”18

Human rights scholars would takeissue with this assertion and arguethat an independent judiciary ismost suited to stand between the pas-sions and emotions of the majorityand the constitution, especially dur-ing times of threat. This issue is botha normative question and an empiri-cal question that must be deferred tofuture research.

Figure 3 depicts 1865-1900, theperiod McCloskey labels as “Consti-tutional Evolution in the GildedAge.” The mean number of caseschallenging congressional statutesduring this period is 3.22, a remark-able increase over the previous

period’s mean of .2 cases per year.19

Towards the end of this period, wefind five outlier years in which theannual number of cases is wellbeyond the mean of 3.22: 1879 (6),1884 (6), 1892 (6), 1897 (7), and1899 (9). The annual number ofreview cases in these five years ismore in line with the mean of thenext period we will examine.

In the 1865-1900 period theSupreme Court nullified congres-sional action in 21 of 116 cases, anaverage of .58 per year. As Caldeiraand McCrone point out the substan-tial increase in nullification cases fol-lowing the Civil War marks thesolidification or “institutionalizationof the court’s power to negate actionsof the legislative departments.”20

McCloskey recognizes this period asone of increased but moderatedactivism, arguing that the Court hadrealized that the “ambiguity of itsmandate is both its limitation and its



Melville Fuller Chief Justice, 1888-1910


opportunity.”21 His assertion is sup-ported by Caldeira and McCrone’sempirical analysis that identifies a sig-nificant but gradual growth inSupreme Court nullifications afterthe Civil War. And this result fits withAckerman’s claim that it was duringthis period, which he refers to as theMiddle Republic, that the SupremeCourt began to review regularly thenational legislation.22

Figure 4 depicts 1901-1937, theperiod McCloskey refers to as the“Judiciary and the Regulatory State.”McCloskey’s analysis of this periodbecomes somewhat trapped in hismetaphor of medieval knights slayingthe dragons of socialism to protect themaidens of capitalism, but ultimatelyhe settles upon the label of “judicialdualism” to describe a court that at

times was “determined to halt the reg-ulatory movement in its tracks” andone that “ratified many inroads on thefree enterprise ideal.”23 This periodoverlaps with four of the five periodsof activism identified in Caldeira andMcCrone’s work, which were alllinked to “such economic phenomenaas industrialization, depression, andthe rise of corporations.”24

During the 1901-1937 period theSupreme Court decided 347 cases inwhich congressional actions werechallenged constitutionally. TheCourt heard an average of 9.38 ofthese cases per year during thisperiod. Fifty-seven of the casesresulted in nullification of a congres-sional statute, with an average of 1.54nullifications per year. While thenumber of nullifications increased

substantially in this period, the pro-portion of cases resulting in nullifica-tions is actually smaller than in theprevious period: .16 compared to .18per year. In no year does the numberof cases nullifying Congress surpassthe number in which the Courtupheld congressional action. A fewindividual years appear as outliers:1911 and 1937 for the number ofcongressional cases reviewed and1935 for the number of cases nullify-ing congressional action.

Figure 5 depicts the years 1937-1957, which McCloskey called the“Modern Court and Postwar Amer-ica.”25 During this period theSupreme Court nullified congres-sional action in only 5 cases out of148, which is the smallest nullifica-tion rate (.03) of any period sincethe Civil War. This number nets anaverage of .23 nullifications per year,again the smallest figure since theCivil War. This finding fits the nullifi-cation trend identified by Caldeiraand McCrone. The Court during thisperiod heard an average 6.73 casesper year constitutionally challengingactions of Congress, which is substan-tially lower than the previousperiod’s average of 9.38 cases per



late 1880s and early 1900s, prior to passage of theJudge’s Bill in 1925. This may in part account forthe increase in the number of judicial review casesin this period and the next. But ultimately herewe are more interested in how often the Courtupholds or nullifies Congress.

20. Caldeira and McCrone, supra, n. 5, at 106.21. McCloskey, supra n. 5, at 89.22. Id. at 63.23. Id. at 91.24. Caldeira and McCrone, supra n. 5, at 115.25. Even though Figure 4 ends with 1937, Fig-

ure 5 begins with the same year to matchMcCloskey's periods.

15. McCloskey, supra n. 5, at 60. 16. Id. at 59.17. Id. at 65.18. Id. at 64.19. The reader should be aware that the Court’s

plenary docket has varied rather substantially overtime, and the means presented here do not con-trol for the size of the Court’s docket. Data for theCourt’s plenary docket only extend back to 1940,and thus would not be available for about three-fourths of the period under study here. While wecannot control statistically for the exact size of theCourt’s docket on an annual basis, we do knowthat the Court’s docket was much heavier in the

William Howard Taft Chief Justice, 1921-1930


year. Three years emerge as outliersin this period, with the Court decid-ing more cases challenging congres-sional statutes: 1937 (15), 1938 (17),1939 (12). Clearly, during the periodencompassing World War II, theCourt was much less likely to chal-lenge Congress, even though it washearing substantial numbers of suchchallenges.

Figure 6 depicts the remainingyears, 1958-2001. During this periodthe Court heard 299 cases reviewingthe constitutionality of congressionalaction, an average of 6.8 per year,which is approximately the same aver-age as the previous period. Threeyears are outliers, with the Courthearing more than 10 cases: 1973(11), 1977 (13), and 1981 (14). Thisperiod produces several notablerecords. First, the Court handeddown 74 cases that nullified Congress,at a rate of 1.68 nullifications per year,the highest rate of any period. Theproportion of nullifications is .25, thehighest of any period. Additionally, infive years the Court nullified Con-gress in four cases: 1965, 1968, 1969,1995, and 1998. Finally, it is signifi-cant that, for the first time, we have

terms in which the cases resulting innullification outnumber the casesupholding Congress: 1965 (4 nullify-ing Congress to 2 upholding Con-gress), 1967 (2 to 0), 1995 (4 to 1),1996 (3 to 2), 1998 (4 to 2), 1999 (3to 1). Four of the six years occur inthe Rehnquist Court and the othertwo in the Warren Court. WhileCaldeira and McCrone’s studyextended only to 1973, they do iden-tify the 1960s as a cycle of activism“that had not yet begun its decline.”26

The nullification rates here supporttheir conclusion.

Court support for Congress When we examine the annual num-ber of cases nullifying congressionalaction across the entire 1803-2001period, we see clearly the increasefollowing the Civil War. Whilebetween 1803 and 1864 the SupremeCourt only overturned two congres-sional statutes, in the period 1865-2001 the Court nullified on averageone statute per year. This result par-allels Caldeira and McCrone’s study,which concluded that the Civil Warwas a watershed in the “developmentof the Court’s use of judicial review

to declare state and federal enact-ments invalid.”27 We also see a secondincrease in nullifications occurringin 1920. For the period 1920-2001the Court nullified congressionalaction an average of 1.3 cases peryear. And then again in 1965, we seea third increase in nullifications, withthe mean number rising to 1.8 forthe period 1965-2001. We canobserve several outliers, years withfour or more nullifications. Duringthe New Deal, for three years four ormore cases nullify congressionalaction: 1930 (5), 1935 (8), and 1936(4). In the Warren Court, three yearsproduce four nullification cases:1965, 1968, and 1969 and in theRehnquist Court we find two yearswith four nullification cases: 1995and 1998. Of course, the Court’sopportunity to nullify cases will varyby the number of cases on thedocket that consider constitutionalchallenges to congressional action.

When we look at the annual per-centage of cases reviewing congres-sional action that resulted in



26. Caldeira and McCrone, supra n. 5, at 115.27. Id. at 113.

Earl Warren Chief Justice, 1953-1969


nullification from 1865 to 2001, wesee that on average the Court nulli-fied congressional action in only 26percent of the cases challenging Con-gress. These data support Lamb’sobservation that the Court is “prima-rily a Court of restraint—or at least ofmild and infrequent activism.”28

While Lamb only examines the set ofcases that resulted in nullification, hetoo notes major exceptions to hisobservation: the Warren Court in itsentirety and the Court during theyears between 1890 and 1936. Myanalysis examining the nullificationoutcomes as percentage of the casesactually challenging Congress findsonly eight years to be extreme out-liers—with percentages higher than60 percent. In three of these years theCourt nullified in 100 percent of thecases: 1867, 1888, and 1967, but itshould be noted that the number ofcases is quite small, only one case in1867 and 1888 and only two in 1967.

The more significant outliers are1869 (67 percent nullification), 1965(67 percent), 1995 (80 percent), 1998(67 percent), and 1999 (75 percent).In these years the Court consideredfour or more cases of constitutionalchallenges to Congress.

When we consider the Court bydecade, rather than year, and look atthe mean percentage of cases thatnullify Congress in the post Civil Warperiod, we find the mean decade nul-lification rate across the entire periodis .26 percent. The rates for four ofthe thirteen decades reach levels wellabove the mean. The RehnquistCourt during the 1990s earns thehighest average percentage, 42 per-cent, with cases primarily dealing withcivil rights and civil liberties, as well asfederalism and interstate economicissues. Slightly less than two-thirds ofthe nullification cases are decided inthe conservative direction (64 per-cent). The Warren Court during the1960s earns the second highest aver-age at 37 percent. Civil rights and civilliberties dominate in these nullifica-tion cases, with 74 percent of thecases decided in the liberal direction.The half decade following the Civil

War produces the third largest aver-age, and this set of cases is dominatedby taxation, interstate commerce, andfederalism issues. The 1880s earns anaverage of 30 percent with cases pri-marily dealing with interstate com-merce, federalism, and economicissues. There are also some cases deal-ing with civil rights issues for Indiansand immigrants.

The two lowest average percent-ages in nullifying Congress occurduring the two world wars. DuringWorld War II and the period imme-diately following only 2 percent ofthe cases challenging Congress werenullified. In eight of these ten yearsthe Court upheld Congress in 100percent of the cases. The second low-est average is during World War I,with the Court nullifying Congress inonly 2 percent of the cases. In four ofthese years, the Court upheld Con-gress 100 percent of the time. Thisresult supports McCloskey’s expecta-tion that “judicial review is to beweakest during grave national emer-gencies.”29 Also born out in thisanalysis is Chief Justice Rehnquist’sassertion that “there is some truth tothe maxim Inter arma silent leges.”30



28. Charles M. Lamb, Judicial Restraint on theSupreme Court in Halpern and Lamb, supra n. 5.

29. McCloskey, supra, n. 5, at 135.30. William H. Rehnquist, ALL THE LAWS BUT

ONE: CIVIL LIBERTIES IN WARTIME 221. (New York:Alfred A. Knopf , 2001).

William H. RehnquistChief Justice, 1986- 2005


Issue areasTable 1 presents the analysis of thecases according to the major issuearea that forms the legal basis of thedecision. This variable is obtainedfrom Spaeth’s U.S. Supreme Court Data-base for the cases decided since 1953.The author has coded the precedingyears, following Spaeth’s codingguidelines. The first column showsthe percentage of cases by issue area.Federalism is the most prevalent, withalmost 20 percent of the cases. Twoissue areas tie with the second highestpercentage, taxation (14 percent)and civil rights (13 percent). Thethird most frequently occurring issueis due process at 12 percent.

Spaeth’s category for due process,however, is rather problematic inthat it combines economic dueprocess, such as cases involving thetakings clause (7 percent of the judi-cial review cases) with non-economicdue process issues (5 percent of thejudicial review cases). An economicissue is the major issue in 9 percentof the cases, but if economic dueprocess cases are added to this cate-gory, we find that 16 percent are eco-nomic in nature, the second largestpercentage of cases. This result ismore consistent with expectations.Two issue areas fall into the fourth-highest percentage: criminal proce-dure (11 percent) and FirstAmendment (11 percent). Judicial

power cases are tied for the lowestpercentage at 5 percent, along withthe miscellaneous category, which ismostly cases dealing with separationof powers issues. Two other issueareas are hardly worth mentioning;those dealing with unions and pri-vacy issues, each representing lessthan 1 percent of the cases understudy here.

The second column in Table 1, thecases that nullified Congress, are sep-arated and then proportioned byissue area. These data show that theSupreme Court is much more likelyto nullify Congress when the casedeals with civil rights, the FirstAmendment, or federalism. Each ofthese represents 17 percent of thenullification cases. The issue wherethe Supreme Court is next mostlikely to nullify Congress is criminalprocedure, 14 percent. And the nextmost likely issue area the Court willoverturn Congress is taxation, at 13percent. Judicial power issues repre-sent 8 percent of the nullificationcases and due process 7 percent ofthe cases. When we separate out thetakings clause due process casesfrom the others, we find that 5 per-cent of the nullification cases involvethe takings clause and only 2 percentinvolve the other areas of dueprocess, such as right to an impartialdecision maker. Spaeth’s miscella-neous category takes up 5 percent of

the nullification cases. As notedbefore, the majority of the miscella-neous cases are separation of powersissues, such as the constitutionalchallenge to the Line Item Veto Actor the War Revenue Act of 1898.Three areas represent less than 1percent each of the cases that nullifyCongress: privacy, unions, and eco-nomic issues. While the percentageof cases falling in Spaeth’s economicsubject area is only .6 percent, whenthe economic due process cases areadded the percentage is over 5 per-cent of the nullification cases.

In the third column of Table 1 thecases in which the Court supportsrather than nullifies Congress areseparated out and then proportionedby issue. Since the Court overwhelm-ing supports Congress, we wouldexpect that these data would parallelthose seen when we looked at themean percentage of cases that nulli-fied Congress in the post Civil Warperiod, but the data are not as similaras we would expect. The most preva-lent issue area in these cases is feder-alism at 20 percent, but beyond thatfinding the similarities disappear.The Supreme Court is next mostlikely to support Congress in taxationcases, at 14 percent. Due process andcivil rights issues are the next highestat 13 and 12 percent, respectively.When the takings clause cases areseparated out from the due process

Table 1: Analysis by major legal

and constitutional issues

% of cases of judicial % of judicial review cases that % of judicial review cases that review of Congress nullified congressional action upheld congressional action

Criminal procedure 10.5% 13.2% 9.99%Civil rights 13.4% 17.8% 12.55%First Amendment 10.5% 17.1% 9.18%Due process 11.8% 6.6% 12.96%Privacy 0.7% 0.7% 0.67%Attorneys 0.2% 0.0% 0.27%Unions 0.9% 0.7% 0.94%Economic activity 8.7% 0.0% 10.53%Judicial power 5.0% 7.9% 4.45%Federalism 19.2% 17.8% 19.57%Taxation 14.1% 13.2% 14.30%Miscellaneous (primarily separation of power) 5.0% 5.3% 4.99%


cases, we find these cases represent 7percent of the cases that supportCongress. Economic issues are nextat 11 percent, followed by criminalprocedure at 10 percent and FirstAmendment issues at 9 percent.Combining the economic cases andthe takings clause cases, we can seethat they encompass over 17 percentof the cases in which the Courtupholds Congress. Judicial powerand miscellaneous issues continue toproduce percentages at around 5percent. The other issues remainbelow 1 percent.

Figure 7 separates out each issuearea to be examined on its own. Look-ing across all issues we can see thenorm is to uphold Congress, with anaverage support rate of 83 percent.On five issues the Court’s support ofCongress is below the mean, but evenso, each is still above a 70 percent sup-port rate. The Supreme Court is mostlikely to challenge the constitutional-ity of congressional action on FirstAmendment issues. The second most

likely issue for the Court to challengeCongress is in regard to judicialpower. Civil rights and criminal pro-cedure cases are the other subjectareas slightly below the mean.

While we might expect theSupreme Court to use its power ofjudicial review to challenge Congresson civil rights and civil liberties, it isnot clear at this point whether thechallenges are to support rights or tocurb them. Future study will examinethis empirical question. The miscella-neous category, which is primarily sep-aration of powers cases, is right onaverage. On three other issues Con-gress earns about average supportfrom the Court: privacy, taxation, andfederalism. In two issue areas Con-gress earns the Court’s support at 90percent or higher: Spaeth’s dueprocess and economic activity. Sepa-rating out the takings clause casesfrom the due process cases producesonly moderate changes: 87 percentsupport for Congress in takings clausecases and 93 percent support in the

other due process cases. The Courtsupports Congress on union issues atabout 88 percent.

Constitutional provisionsFigure 8 examines a slightly differentdimension of the cases—the key con-stitutional clause in each case inwhich there were five more casesdealing with that clause as the keylegal provision. As with issue area,these data were culled from Spaeth’sU.S. Supreme Court Database for theyears prior to 1953 and the authorhas coded the preceding years fol-lowing Spaeth’s operationalization.The domination of the InterstateCommerce Clause presents the mostnoticeable trend: in 132 of the cases(31 percent) the commerce clausewas the primary legal provisionunder consideration. The FirstAmendment is the second mostprevalent legal provision: 78 cases(18 percent). The taxation clausesare only slightly below the FirstAmendment: 76 cases (18 percent).

Figure 7. Percentage support within each issue area


Three constitutional provisionsappear in the 4 to 5 percent range:the Tenth Amendment (22 cases, 5percent), the Fourteenth Amend-ment (18 cases, 4 percent), and thedelegation of powers and separationof powers provisions (17 cases, 4percent). The naturalization clauseis close behind these three with 16cases (4 percent). The SixteenthAmendment is the key legal provi-sion in 16 cases (3 percent).

The remaining seven provisionsrepresent less than 3 percent of thecases: the bill of attainder provision (9cases, 2 percent), the necessary andproper clause (9 cases, 2 percent), theDistrict of Columbia clause (8 cases, 2percent), the Thirteenth Amend-ment (7 cases, 2 percent), and thecoin money clause (6 cases, 1 per-cent). And at 5 cases (1 percent) arethe Eleventh Amendment, the gover-nance of the armed forces clause, andthe postal powers clause.

ConclusionIn this analysis we have seen thenumber of Supreme Court caseschallenging Congress increase grad-ually following the Civil War, with aconcomitant increase in the numberof nullifications. However, the domi-nant trend across the Court’s historyremains one of supporting Congress,with exceptions primarily during thedecades of the 1960s and the 1990s.We have also seen a decline in pro-portion of cases nullifying Congressduring times of national crises, suchas the two world wars. Federalismissues have dominated when weexamine the full set of cases chal-lenging Congress, but when we nar-row our examination to nullificationcases only, we find civil rights andFirst Amendment cases have beenequally prevalent. The InterstateCommerce clause was the dominantconstitutional provision upon whichthese constitutional challenges were

based, followed by the First Amend-ment and taxation clauses.

This study makes only an initialexamination of this important judi-cial power. Future studies will ana-lyze the role of the chief justice inthese cases, the votes of individualjustices, and the ideological out-comes of the Court’s votes and theindividual justices’ decisions. Ulti-mately, I plan to address de Toc-queville’s quote, with which I beganthis article, and examine empiricallythe question of whether judicialreview has actually been used as atool to protect against the “tyrannyof the majority.” g

LINDA CAMP KEITH is an assistant professor of politicalscience at the University of Texas atDallas. ([email protected])

Figure 8. Frequency of key constitutional clause in

congressional review cases (clauses that

were key in 5 or more cases)

Documents

United States Supreme Court and judicial review …lck016000/JudicatureUSSCT.pdf · The United States Supreme Court and judicial review ... Figure 1. The annual number of cases of