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Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model

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  • Jeffrey A. Segal
  • Chad Westerland
  • Stefanie A. Lindquist

Abstract

Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational‐anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional‐maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll‐call votes to estimate support in the current Congress for the original legislation and the Court's preferences over that legislation. We find that the Court does not appear to consider the likelihood of override in constitutional cases, but it does back away from striking laws when it is ideologically distant from Congress.

Suggested Citation

  • Jeffrey A. Segal & Chad Westerland & Stefanie A. Lindquist, 2011. "Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model," American Journal of Political Science, John Wiley & Sons, vol. 55(1), pages 89-104, January.
    • Handle: RePEc:wly:amposc:v:55:y:2011:i:1:p:89-104
    DOI: 10.1111/j.1540-5907.2010.00480.x
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    Cited by:

    1. Álvaro Bustos & Nuno Garoupa, 2020. "An Integrated Theory of Litigation and Legal Standards," Documentos de Trabajo 536, Instituto de Economia. Pontificia Universidad Católica de Chile..
    2. Thomas H. Hammond, 2015. "A unified spatial model of American political institutions," Chapters, in: Jac C. Heckelman & Nicholas R. Miller (ed.), Handbook of Social Choice and Voting, chapter 11, pages 182-200, Edward Elgar Publishing.
    3. Karakas, Leyla D., 2017. "Political rents under alternative forms of judicial review," International Review of Law and Economics, Elsevier, vol. 52(C), pages 86-96.
    4. José Luis Castro-Montero & Edwin Alblas & Arthur Dyevre & Nicolas Lampach, 2018. "The Court of Justice and treaty revision: A case of strategic leniency?," European Union Politics, , vol. 19(4), pages 570-596, December.
    5. Gordon Ballingrud, 2021. "Ideology and Risk Focus: Conservatism and Opinion‐Writing In the U.S. Supreme Court," Social Science Quarterly, Southwestern Social Science Association, vol. 102(1), pages 281-300, January.

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