Saying What the Law is: Measuring Judicial Review

Abstract

In this paper, we propose a comprehensive technique to accurately measure the various options judges have when exercising their power of judicial review. We begin with a discussion of the problems with the way judicial review has been conceptualized, namely as a dichotomous — uphold or strike down — choice. We then propose a new way to operationalize judicial review. Our nuanced measure considers both narrow and broad variants of upholding or striking behavior. We identify five distinct categories: (1) Uphold Broadly, (2) Uphold Narrowly, (3) Strike Down As Applied (4) Strike Down On Face Narrowly, and (5) Strike Down On Face Broadly. We then explicate our measure through a detailed examination of illustrative Supreme Court decisions for each category. We also present preliminary results from data we coded for all of the decisions of the Roberts Court from the 2005-2011 terms that involved judicial review of federal law. We find that the Court rules narrowly far more often than it rules broadly, that ideologically moderate justices rule more narrowly than do their ideologically extreme colleagues, and that the Roberts Court has only been able to achieve unanimity by ruling narrowly. Ultimately, we suggest that our more nuanced measure of judicial review will help us better understand judicial decision making, particularly as it relates to separation-of-powers questions and the broader impact of lawmaking and policymaking decisions in Congress and the executive branch. Understanding the choices justices face when voting to dispose of a case will also help our understanding of choices justices make in the decision-making process.

Keywords: supreme court, judicial decision making, judicial review