Modeling the Congressional End-Run Constraint
Luke M. Milligan
University of Louisville - Louis D. Brandeis School of Law
University of Richmond Law Review, Vol. 45, No. 3, March 2011
University of Louisville School of Law Legal Studies Research Paper Series No. 2012-10
The judicial politics literature on the role of Congress in judicial review remains inconclusive. This protracted state of uncertainty might ultimately be explained by the literature‘s undue dependence on a two-constraint paradigm. For five decades judicial politics scholars have confined their analyses to two types of congressional constraints on judicial review: curbs and overrides. But by examining recent developments in constitutional theory, one can infer a new, heretofore ignored category of constraint on judicial review. This constraint is the congressional end-run.
End-runs occur where Congress seeks to mitigate the policy implications of adverse judicial review by neither formally limiting the Court‘s authority nor by substituting its preferred interpretation for that of the Court, but through a different decision which cannot, as a practical if not legal matter, be invalidated by the Court. Examples of the congressional end-run include decisions to modify grants of authority to the executive branch, adjust appropriations, amend contingent rules, or reorient the bases for legislation in an alternate constitutional clause. The strategic justices assumed by judicial politics scholars will at some points compromise their exercise of judicial review to avoid triggering end-runs damaging to their overall policy agenda.
This article puts forth a formal theoretical model of the end-run. This model reveals that the traditional SOP models (which have worked within the two-constraint paradigm) have systematically underestimated the degree to which their assumed justices are constrained by Congress. Judicial politics scholars should amend their formal models and redesign their empirical studies to account for the constraining effect of the congressional end-run. This reorientation will likely give political scientists a fuller understanding of the interactions between Congress and the Supreme Court.
Number of Pages in PDF File: 40
Keywords: Courts, Judicial Decision-making, Constitutional Law, JurisprudenceAccepted Paper Series
Date posted: July 4, 2012
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