Research Note on the History of Judicial Review of Congress and JRC Database

Abstract

Over time, there has been a surprisingly diverse set of answers offered to the question of how often the U.S. Supreme Court has struck down an act of Congress as unconstitutional. At the request of Congress in the mid-twentieth century, Princeton constitutional scholar Edward Corwin assembled a now-canonical list of cases in which the Court struck down an act of Congress, and the Congressional Research Service has continued to update that list. Unfortunately, there is reason to doubt the accuracy of that list, and it does not even attempt to account for cases in which the Court has upheld statutory provisions against constitutional challenge.

The new Judicial Review of Congress database tries to provide a comprehensive list of every instance in which the U.S. Supreme Court substantively reviewed the constitutionality of the application of a provision of a federal statute, identified the constitutional boundaries of the legislative power of Congress, and either upheld the statute against constitutional challenge or refused to apply the statute due to constitutional defect. The database includes a list of all the cases in which the Court has substantively reviewed the constitutionality of an act of Congress from 1789 through the spring of 2018 (the retirement of Justice Anthony Kennedy), as well as a variety of associated information such as identifying information about the statute that was reviewed, a measure of its importance, and the length of time between the passage of the statutory provision and its review by the Supreme Court. The database is now freely available. This paper briefly outlines the need for such a database and provides additional details about it.

Keywords: judicial review, Supreme Court, Congress, constitutional history, Marbury, constitutional law