A Preference for Deference? The Supreme Court and Judicial Review

• DOI: 10.1177/106591290405700111
• Date: 01 March 2004
• Published date: 01 March 2004
• Subject Matter: Articles

Since the Supreme Court first declared an act of Con-

gress unconstitutional in Marbury v. Madison (1803),

few assertions of judicial power have remained as trou-

bling 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-majori-

tarian 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 Court’s ability to

protect the interests of unpopular majorities. Nevertheless,

how the Court should use this power, and how often it actu-

ally 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

focus 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 illumi-

nate this crucial aspect of judicial restraint.

Given this, it is surprising that there are almost no sys-

tematic examinations of how the Court reacts to requests to

exercise judicial review. In this manuscript, we bring sys-

tematic 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 ideo-

logical direction of the request. We also examine issues of

sua sponte review and the role of the political environment.

THEORETICAL CONCERNS

The most gripping examples of judicial activism are deci-

sions to declare unconstitutional laws of congress and the

state legislatures. The conflict between elected representa-

tives and the appointed judiciary is most pronounced in

these situations, and the Court’s decision is usually final.

Both justices and Courts may be defined as either activist or

restraintist. A restraintist justice (or Court) defers to the

democratic majority and most often sustains the legislation.

An activist justice (or Court) is less deferential, and there-

fore less reticent about striking down such laws.

Many theorists argue that judges generally ought to

refrain from striking down laws passed by the democratic

majority. Normatively, judicial restraint is considered appro-

priate because judges are insulated from public opinion and

electoral control (Thayer 1893; Commager 1943; Allan

1996; Franck 1996; Waldron 1993, 1998). There is a

131

A Preference for Deference?

The Supreme Court and Judicial Review

ROBERT M. HOWARD, GEORGIA STATE UNIVERSITY

JEFFREY A. SEGAL, SUNY STONY BROOK

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 judi-

cial 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.

NOTE: We thank Melissa Marschall, Richard Foster, and Robert Johnston

for research assistance. We also thank the National Science Foun-

dation (SBR 9515335) for financial support.

Political Research Quarterly, Vol. 57, No. 1 (March 2004): pp. 131-143