The Multi-Staged Process of Judicial Review: Facial and As-Applied Constitutional Challenges to Legislation Before the U.S. Supreme Court

42 Pages Posted: 11 Nov 2009 Last revised: 1 Nov 2010

Stefanie A. Lindquist

University of Texas at Austin - School of Law

Pamela C. Corley

Vanderbilt University

Date Written: November 10, 2009

Abstract

The Supreme Court's decision to invalidate a legislative enactment involves both the choice to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices' choices to invalidate a state or federal enactment on its face or as applied using a Heckman probit technique, and find that the justices are responsive to both Congressional preferences over the substance of the challenged enactment, as well as the Court's ideological position relative to the two chambers of Congress. These findings suggest that the Court's exercise of judicial review is significantly influenced by Congress, both as to the choice to strike as well as to the method of constitutional enforcement.

Suggested Citation

Lindquist, Stefanie A. and Corley, Pamela C., The Multi-Staged Process of Judicial Review: Facial and As-Applied Constitutional Challenges to Legislation Before the U.S. Supreme Court (November 10, 2009). U of Texas Law, Public Law Research Paper No. 163; U of Texas Law, Law and Econ Research Paper No. 176. Available at SSRN: https://ssrn.com/abstract=1503572 or http://dx.doi.org/10.2139/ssrn.1503572

Stefanie A. Lindquist (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1319 (Phone)

Pamela C. Corley

Vanderbilt University ( email )

Nashville, TN 37240
United States

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