Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes?

American Political Science Review, Vol. 101, No. 2, pp. 321-338, May 2007

18 Pages Posted: 14 May 2011

See all articles by Thomas M. Keck

Thomas M. Keck

Syracuse University - Maxwell School of Citizenship and Public Affairs

Date Written: January 12, 2007

Abstract

This paper explores three competing accounts of judicial review by comparing the enacting and invalidating coalitions for each of the fifty-three federal statutes struck down by the Supreme Court during its 1981 through 2005 terms. When a Republican judicial coalition invalidates a Democratic statute, the Court’s decision is consistent with a partisan account, and when a conservative judicial coalition invalidates a liberal statute, the decision is explicable on policy grounds. But when an ideologically mixed coalition invalidates a bipartisan statute, the decision may have reflected an institutional divide between judges and legislators rather than a partisan or policy conflict. Finding more cases consistent with this last explanation than either of the others, I suggest that the existing literature has paid insufficient attention to the possibility of institutionally motivated judicial behavior, and more importantly, that any comprehensive account of the Court’s decisions will have to attend to the interaction of multiple competing influences on the justices.

Keywords: Supreme Court, judicial review, regime politics, attitudinal model, historical institutionalism, Rehnquist Court

Suggested Citation

Keck, Thomas M., Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes? (January 12, 2007). American Political Science Review, Vol. 101, No. 2, pp. 321-338, May 2007. Available at SSRN: https://ssrn.com/abstract=1839705

Thomas M. Keck (Contact Author)

Syracuse University - Maxwell School of Citizenship and Public Affairs ( email )

Syracuse, NY 13244
United States

HOME PAGE: http://faculty.maxwell.syr.edu/tmkeck/

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