Ideological Extremism, Public Preferences, and Federal Judicial Review in the U.S. Supreme Court

Abstract

With the recent anniversary of Marbury vs. Madison, our national fixation with judicial review celebrated its 200th birthday. The roots of that obsession are straightforward: the practice of judicial review - by which often unelected and largely politically unaccountable courts review and decide upon the constitutionality of duly-enacted state and federal statutes - appears on its face to be patently undemocratic, a state of affairs exacerbated by courts' seemingly frequent adventures into striking down laws which are longstanding, widely popular, or (occasionally) both. As with many obsessions, however, this one has often produced more heat than light, particularly when it takes on its more partisan forms. In this paper, I hope to begin to change that, by offering an overview of the practice of judicial review over the past five decades. I focus on the most prominent example of judicial review: constitutional review of federal laws by the U.S. Supreme Court. I do so for reasons of tractability, and in doing so, I don't wish to minimize the significance of judicial review in other contexts, including the uniquely problematic questions surrounding federal judicial review of state statutes. Rather, my hope is to point out how little in fact we know, empirically speaking, about the operation of judicial review at the level of the U.S. Supreme Court, and in doing so to examine some of the common understandings (and potential misunderstandings) about its occurrence. More important, my goal is to provide a more solid empirical footing for the ongoing (and increasingly heated) ideological debates about the role of judges and courts - particularly the U.S. Supreme Court - in shaping American society and law. It is also important to recognize at the outset what I am not endeavoring to accomplish here. I offer neither a theoretical critique nor a defense of judicial review per se; that is well-trod ground. Nor am I interested in waging an attack on the use of judicial review by any particular Court, past or present; the fact that my analysis encompasses a period from the earliest days of the Warren Court to the the Rehnquist Court's zenith in the late 1990s serves only to broaden the generality of my empirical conclusions. Perhaps most important, the paper is not an attempt to wrestle - at least, not directly - with the counter-majoritarian difficulty (cf. Friedman 2002). At the same time, the work here should illuminate debates in all these areas, particularly those over the existence of an intrinsic political bias to the use of judicial review that has been suggested by many scholars and pundits.