National Policy Preferences and Judicial Review of State Statutes at the United States Supreme Court

Abstract

This article explores the determinants of U.S. Supreme Court justices’ voting behavior in cases involving constitutional challenges to state statutes, with a particular focus on the degree to which majoritarian influences—as reflected in state participation and congressional preferences—affect the justices’ votes. We find that the scope of the Court’s decision—in terms of its impact on similar state laws and the expressed interest of states as amicus—strongly affects the justices’ willingness to vote to invalidate a state statute. Moreover, at least in the Burger Court, the justices were constrained by congressional preferences over the ideological direction of the constitutional challenge. Justices on the Rehnquist Court, however, appear to have been more impervious to congressional preferences when evaluating the constitutionality of state legislation.