Why Does the Supreme Court Uphold so Many Laws?

45 Pages Posted: 19 May 2017

See all articles by Ben Johnson

Ben Johnson

Penn State Law School (University Park)

Keith E. Whittington

Princeton University - Department of Political Science

Date Written: May 6, 2017


Scholars spend a lot of time considering the legitimacy and implications of the Supreme Court striking down federal laws by use of judicial review. Similarly, there is a large literature focusing on the Court’s power and obligation to manage the federal judiciary through its certiorari powers over its own docket and its ability to reverse lower courts. However, there is almost no work that examines the interplay of the Court’s judicial review powers and its managerial authority. Scholars have overlooked this intersection because they implicitly understand the power of judicial review and the federal hierarchy as institutions based on vetoes. On this account, the Court takes a judicial review case to veto either Congress or a lower court. This suggests that the Court should never take a case in which it affirms a lower court and upholds a federal statute. This account is (almost) entirely wrong. Using a new and comprehensive dataset, we show that throughout its history, the Court has affirmed the lower court and upheld the statute in the plurality of its judicial review decisions. The box that current theories predict should be empty is actually the fullest.

This is the first article to provide an empirical look at the Supreme Court’s judicial review practices in relation to its discretionary power over its docket. It considers various possible explanations for these uphold-affirm cases like circuit splits or mandatory review and finds them wanting. The empirical results lead us to develop a theory of positive judicial review. While many scholars have pondered what the Court gains from striking down laws, we are the first that considers the normative implications of and what the Court may gain from upholding statutes.

We use these empirical and theoretical efforts to examine the Roberts Court and show that it is an historical outlier. Under Roberts, the Court has dramatically reduced its judicial review docket, and it has stopped taking uphold-affirm cases entirely. We examine what may have caused the Roberts Court to be the first Court in history that conforms to theoretical expectations and use these insights to predict how the Court may behave in the future.

Keywords: judicial review, cert, reversals, judicial politics, supreme court

Suggested Citation

Johnson, Ben and Whittington, Keith E., Why Does the Supreme Court Uphold so Many Laws? (May 6, 2017). University of Illinois Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2970868

Ben Johnson

Penn State Law School (University Park) ( email )

201 Shields Building
University Park, PA 16802-1294
United States

Keith E. Whittington (Contact Author)

Princeton University - Department of Political Science ( email )

Corwin Hall
Princeton, NJ 08544-1012
United States
609-258-3453 (Phone)
609-258-1110 (Fax)

HOME PAGE: http://www.princeton.edu/~kewhitt/

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