A Preference for Deference? The Supreme Court and Judicial Review

Abstract

The power of the Supreme Court to declare laws unconstitutional remains as troubling today as when first introduced in Marbury v. Madison. While the normative arguments will perhaps always remain unsettled, the empirical question of when and how often justices actually use this power also continues unanswered. Using data derived from briefs filed by litigants over ten terms, we develop systematic tests of how requests for judicial review of state and federal laws influence U.S. Supreme Court justices. We find that while many appear to base their decisions to strike or uphold state or federal laws on ideological considerations, the Court itself can be called restraintist in that it never appears to strike laws sua sponte, and most requests for the review are voted down. Finally, we find little evidence of strategic considerations in the justices' decisions.