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

Abstract

Scholars dispute whether the Supreme Court is constrained by the threat of Congressional override of its decisions. In the context of judicial review of the constititutionality of federal legislation, tensions between the two branches are arguably at their peak. In this paper, therefore, we test two tracks to Congressional inference: the rational anticipation of the separation of powers model and a more boundedly rational institutional maintenance model. We do this by estimating the preferences of the current Court's and the current Congress over the challenged legislation to determine whether the Court rationally anticipates being overturned in the instant case and proactively capitulates. We test the institutional maintenance model by examining factors that do not require the Court to know whether any particular case will be overturned, but nevertheless might cue the Court that it is acting in a hostile environment, and thus should be wary. In this initial analysis of our data, we find that the Court does not appear to be constrained by expectations of Congressional override. On the other hand, the Court is substantially less likely to strike legislation when it is ideologically distant from the House and Senate, as Congress could then act institutionally against the judiciary.

Keywords: judicial review, separation of powers, supreme court, congress