Ideology, Partisanship, and Judicial Review of Acts of Congress, 1789-2006

Abstract

Predominant empirical theories of judicial review indicate that the Supreme Court should be more likely to strike down legislation passed by its partisan and ideological opponents and uphold against constitutional challenge legislation passed by its allies. This article introduces an original dataset composed of all cases in which the Court substantively reviewed the constitutionality of federal statutes from 1789 through 2006 in order to provide a substantial test of these expectations across the full range of American history and across the full range of judicial review. The evidence suggests that ideologically distant legislation is more likely to be facially invalidated by the Court, but is no more likely to be struck down as applied in particular cases. The Court is more likely to strike down statutes as applied when they are being implemented by ideologically distant administrations, however. Laws adopted under conditions of divided government are much more likely to be upheld than are others that come under review by the Court. Although older statutes are more vulnerable to as-applied invalidations, they are less vulnerable to facial challenges than are more recent statutes. Contrary to common expectations, controlling for ideological factors, relatively unimportant statutes are not more vulnerable to judicial invalidation than important statutes and the presence of government lawyers arguing the case does not help preserve statutes against challenge.