Supreme Court

How Often Has the U.S. Supreme Court Struck Down a Federal Law?

Depends on who you ask.

|The Volokh Conspiracy |

Everybody knows that the American courts exercise the power to evaluate the constitutionality of legislation and declare those laws that violate the Constitution to be legally void and of no effect. To a surprising degree, it has been unclear how often the courts have exercised that power.

The problem started at the beginning. The U.S. Constitution is clear about such basic governance issues as whether the president has the power to veto bills, whether Congress can override that veto, and how bills become law. The Constitution famously does not say that the federal courts have the power of judicial review; it merely says that the "judicial Power of the United States" shall be vested in the Supreme Court and any inferior courts that Congress might create.

It is a myth that Chief Justice John Marshall invented, created or established the power of judicial review in his 1803 opinion in the case of Marbury v. Madison. Such a power was widely recognized in the years after the American Revolution and had been exercised by numerous courts, including the U.S. Supreme Court, prior to 1803.  But Marshall did provide a compelling account of that power, and his opinion eventually became a touchstone for those seeking to explain, justify or criticize such a power.

Because the Constitution does not explicitly set out the power of judicial review, it has been far more contested and far less systematically accounted for than other such basic features of the American constitutional system as the presidential veto. Even the name "judicial review" is a modern invention, coined by the young Princeton constitutional scholar Edward Corwin at the beginning of the twentieth century to provide a shorthand description for the increasingly prominent activity of the courts in scrutinizing the constitutionality of duly enacted statutes. Corwin coined the term in the midst of a scholarly and popular debate over the origins, scope and legitimacy of the power of judicial review.

Among the issues in that debate was how often the U.S. Supreme Court had actually exercised the power of judicial review. The answers were surprisingly diverse. Since the Constitution did not specify that there was such a power of judicial review, it also did not specify the form by which it should be exercised. The Constitution specified that presidential vetoes should be recorded in the journal of each legislative chamber. The number of vetoes could be numbered and counted. There is no such requirement when the courts strike down a law as unconstitutional.

When, in 1792, the 2nd Congress first heard the news from a constituent that a federal judge had declared a federal statutory provision unconstitutional, there was a brief debate over what kind of response might be appropriate and whether a system needed to be put in place so that the legislature would be promptly informed when such actions were taken. But nothing was done. The courts made decisions and issued opinions, but no one designated instances of judicial review, reported such events to Congress, or put them down in an official record.

After the constitutional centennial, the Supreme Court's reporter, Bancroft Davis, took it upon himself to compile a list of cases in which the Court had struck down an act of Congress as unconstitutional and included it in a historical appendix to a volume of the Court's opinions in 1889. The Davis list proved to be controversial, and the historical debate over the incidence of judicial review was politicized. Populists and Progressives argued that the Court had rarely exercised the power of judicial review – and thus should rarely exercise it in the future since it was of dubious legitimacy. Conservatives argued that the Court had exercised the power of judicial review more often – and should keep on exercising it in the future to temper the passions of popular majorities. Some argued that John Marshall created the power of judicial review out of whole cloth and that the Court rarely dared exercise the power afterwards. Some went further and denied that even Marbury itself could properly be understood as an example of judicial invalidation of a federal law. Others argued that Marbury was just one of many instances of judicial review and was just one example of a venerable judicial practice.

Near the end of his career Edward Corwin played a big role in putting that debate to rest by compiling a now-canonical list of cases in which the Court invalidated a federal law. But Corwin's list is wrong.

You'll really know the rest of the story if you read Repugnant Laws. You'll get another taste in a future blog post.

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47 responses to “How Often Has the U.S. Supreme Court Struck Down a Federal Law?

  1. The notion that the power of judicial review was “invented” by Justice John Marshall is rather ridiculous. Even before the Constitution was ratified, Hamilton pointed out in Federalist No. 78 that such a power was essential to the very notion of a government of limited and enumerated powers. There was no other way to realistically enforce the Constitutional limits on the Legislative branch other than to permit the judiciary to simply refuse to recognize legislative acts which were contrary to those limits. In Hamilton’s words:

    “Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

    1. “such a power was essential to the very notion of a government of limited and enumerated powers”

      Well, then I guess he should have gotten such a power into the actual text of the Constitution.

      1. It’s right there in Article III – it is part and parcel of the judicial power, which includes the power to say what the law is. Or would you insist that Article III include a complete definition of the precise boundaries of “the judicial power”?

        1. The executive veto is set out as a specific power, its not assumed to be part and parcel of the executive power though it certainly is.

          Judicial striking of Executive approved Congressional acts is a veto power not set out in the Constitutional text.

          1. If you go by the Federalist papers, the veto is not part of the executive power. Instead, it’s a legislative power trusted to the executive. This is because it is involved in the process of making laws instead of the process of carrying out laws. The executive power isn’t the royal prerogative and it shouldn’t be assumed that all powers of the King were part of the executive power.

          2. There’s plenty of things inherent in the executive power that are not spelled out, e.g., executive privilege.

            The idea that the Judicial Power would not include the power to interpret laws is insane.

    2. “There was no other way to realistically enforce the Constitutional limits on the Legislative branch…”

      This is nonsense. One limitation would be to appeal directly to the Legislature (elections). Another would be the many ways in which the Executive can directly counteract the Legislature. The Executive can veto unconstitutional laws, refuse to enforce them, etc. That’s what ambition counteracting ambition was all about. Even Hamilton contemplated a weak, ineffectual court, with an exceedingly narrow ability to exercise judicial review.

      1. “One limitation would be to appeal directly to the Legislature (elections).”

        That assumes that a majority of voters disapproves of an unconstitutional action. However, since a great many of the limitations in the Constitution were designed specifically to safeguard minorities from the tyranny of the majority, relying upon political solutions is misguided. Can you imagine in 1954 if the Court in Brown v. Board of Education said “of course segregated school systems are unconstitutional, but that is what the laws of the state of Kansas (and Georgia, Alabama, Mississippi, Louisiana, Texas, Oklahoma, etc.) requires, and we are powerless to overrule such laws. Let the voters of these states enact the solution.” No, the interference of the judiciary is essential if the Constitutional protections of minority rights are to be effective.

        1. The thing we’re arguing about is the type of government the Constitution created. Besides creating a limited federal government, it also created a majoritarian legislature and gave it enormous power, certainly more power than it gave the judiciary. Again, the intended extent of minority safeguards are the thing we’re debating, not the conclusion you get to simply assert.

          Can I imagine if Brown came out differently? Of course. There’s little doubt that there were certain rights that the 14A was not intended to protect, even among insular minorities. The 15A itself is pretty distinct evidence that the 14A was specifically limited to certain rights, and a very strong argument can be made that it was limited to certain civil rights contemplated in the earlier Civil Rights Acts, none of which guaranteed non-segregated schools. Brown wasn’t obviously correct (as a constitutional matter).

          It’s also a strange example for two separate reasons. First, Brown involved disputes between SCOTUS and the states, so SCOTUS was not being asked to invalidate the laws of a coordinate branch of government. Second, the 14th Amendment contemplates a specific enforcement mechanism in Section 5, and it doesn’t mention the federal judiciary. And of course the only reason the 14A was necessary in the first place, were fears that the same court that decided Dred Scott would invalidate the 1866ish Civil Rights Act(s).

          So, empirically it’s silly to presume that SCOTUS is essential to the protection of minority rights, given its checkered history. But more importantly we know it isn’t essential in the first place, because the Constitution is a document preserving minority rights, and SCOTUS didn’t write it.

          1. The 15A is not evidence of limitations on the 14A. It is evidence of a fear that the mandate of equal protection would not be taken seriously.

            1. That doesn’t work as a matter of statutory construction, since it would render the 15A mere surplusage. It’s also not believable. If the ratifiers of the 14A were worried that the 14A would not be taken seriously, what good would another Amendment do? Why wouldn’t the people they feared wouldn’t take the 14A seriously, just not take the 15A seriously? How does adding amendments solve the problem of people ignoring amendments?

  2. Not nearly often enough?

    It’s my perception that the federal courts are much, much more active about striking down state laws than federal.

    1. That’s hardly surprising. SCOTUS is expected to be more deferential to a coordinate branch, the states are busy little laboratories, and because of incorporation and the EP clause, constitutional prohibitions on state action are now broader than limitations on federal action.

  3. “Not nearly often enough?”

    Agreed.

    “It’s my perception that the federal courts are much, much more active about striking down state laws than federal.”

    True, but that’s for modern times. It’s my understanding that the Federal courts didn’t review state laws at all until after the ratification of 14A.

    1. Yes, 14A was in essence a giant federal power grab then hijacked by the courts.

      1. Well, the actions of bigoted Southern conservatives made that power grab entirely justified.

  4. I do enjoy how conservatives in the Conspiracy comentariat all agree that the judiciary is a liberal disgrace, but differ wildly as to what it should be doing.

    ‘Strike down more federal laws!’
    ‘No, do more state laws!’
    ‘No, strike down fewer laws, you activists!’
    ‘No, stop striking down any laws at all!’

    1. We value diversity of thought, we are not lock step ideologues like your side.

      1. Didn’t think you’d the one to try and be cute.

        This isn’t diversity of thought, this is having no ideological throughline other than radicalism.

        1. Not too impressive yet again Dr. Sarcastr0. Conservatives would interpret laws reasonably. Only progressive morons use some sort of “ideological throughline” to produce their desired results.

          1. MKE, I suggest it’s more about differences in the approach to experience.

            Reasoning flaws on today’s conservative side are more likely to be ideological—axiomatic, over-rationalistic, and scornful of a role for experience. Modern conservatives think they can start with ideological premises and deduce facts, including even facts of history. Conservatives also tend to universalize a tribal imperative.

            On the liberal side, the reasoning flaws embrace opportunism, show too great a tolerance for chaos, and are slow to let experience correct bad results of experimental policies. Modern liberals think they can start with present-day morality, apply it to history, and use the result to govern today’s politics.

            Both kinds of reasoning have grown self-satisfied, rigid, and intolerant.

            1. There’s a lot of truth there.

          2. MKE, please read my comment again. I’m not talking about an ideological throughline when it comes to policies.

            I’m saying the only ideological throughline about the role of the judiciary is that everyone hates it. That’s not the sign of a healthy coalition but rather a reactionary one.

            Kind of like your comment saw the word ideological and then posted the usual pablum about ‘your side objective other side bad faith’ rather than thinking about what the words were communicating.

            1. Conservatives would interpret laws reasonably. Only progressive morons use some sort of “ideological throughline” to produce their desired results.

              MKE, if you can spare a moment for self-examination, those two sentences deserve your attention. They show it has not yet dawned on you that the notion that reason ought to be the universal ruler of politics is itself ideological. You may well think it scandalous to suppose otherwise.

              For a different view, I highly recommend a work by the conservative philosopher and historian, Michael Oakeshott, called, Rationalism in Politics and other essays, available in paperback from Amazon. Anyone who counts himself a conservative, but who hasn’t read Oakeshott, will always be at risk of making the kind of un-self-critical mistake you made when you wrote those two sentences.

            2. Conservatives certainly don’t interpret the 11th Amendment reasonably.

      2. Your comment contradicts itself. How do you demarcate between “we” and “your side” if you value diversity of thought? The very fact that you respond to Sarcastro’s comment by inferring he or she is a member of a “side” other than the one you place yourself in means that you employed some criteria for differentiating “sides” and then a quality to assign people to said sides. That this was done based on an anonymous comment expressing thought leads to the conclusion that the expressed thought was the criteria you used.

        I’m sure by now you’ve placed me on a “side” based on my thought. But of course, you value diversity of thought, unlike that “other side.”

        1. You act like Sarcasto just about daily has not posted here for a decade.

          I don’t have to assign him a side.

          “my thought”

          I wasn’t aware you comment involved thought.

  5. “It is a myth that Chief Justice John Marshall invented, created or established the power of judicial review in his 1803 opinion in the case of Marbury v. Madison. Such a power was widely recognized in the years after the American Revolution and had been exercised by numerous courts, including the U.S. Supreme Court, prior to 1803.”

    Odd that this power wasn’t written into the Constitution, isn’t it? That document gives very short shrift to a Supreme Court.

    Also odd that, if the power of judicial review was already well established, that the country went nuts after Chisholm v. Georgia in 1793 and passed the Eleventh Amendment which clipped its wings.

    1. Odd that this power wasn’t written into the Constitution, isn’t it?

      It was written into the Constitution.

      Also odd that, if the power of judicial review was already well established, that the country went nuts after Chisholm v. Georgia in 1793 and passed the Eleventh Amendment which clipped its wings.

      The controversy there had nothing to do with the existence of the power of judicial review.

  6. Not sure, but another injunction regarding the border wall. Somehow, every Trump action seems to be heard before a non-white Obama appointee. Very strange coincidence.

  7. Blackstone on (perhaps too much) Coke. The ethic of judicial independence, and the idea that the common learning of the law (which was not precisely precedent, Inns talks, or books, but could be gleaned from them) offered a competence separate from the charms of the sovereign’s power (cf. Weber) takes hold with Coke v. Ellesmere. Blackstone, which became the vade mecum for itinerant colonist lawyers, embraced this challenge to Parliamentary sovereignty, although the principle ended up not taking hold in the UK. But it’s not illogical to think that a legal culture that had grown up isolated from the jurisdiction of the common-law courts would interpose a check on legislative supremacy. (With the benign neglect of Parliament and the lack of jurisdiction of the writs-courts, cases and controversies ran to Privy Council.)

    The interesting thing, though, is the competence asserted. English judges knew the law, so they could confidently speak truth to power. There’s not really a tenable argument to say that the Supreme Court knows the Constitution better than Congress does. It’s become the umpire, not the expert on the rulebook.

    1. Turtle Dove, as low as my opinion of the Supreme Court has sunk, and as willing as I am to rely on politics (meaning Congress, mainly) to make policy, I can’t see how anyone can reach the conclusion that Congress, as a body, is as well-informed on the Constitution as is the Court, as a body. I have met too many congress-people to suppose that.

      1. Certainly not saying that nine Representatives or even Senators picked at random could beat Roberts et al. on a Constitution-themed quiz show. But the institution, with all its institutional resources, certainly knows enough about the Federal Constitution to defeat any claim of unique institutional competence. And I don’t think the modern court is even making the claim of unique institutional competence. They’re claiming to be umpires, which gives them the moral right to judge the case, but its not necessarily the same moral claim that lawyers have historically asserted against political power. Coke thought of himself as an expert, not as an umpire.

    2. That analogy doesn’t even make sense; the umpire is the expert on the rulebook.

      1. They have to be experts, and their work consists of applying the rules to the facts, but their legitimacy doesn’t arise from a superior understanding of the rules. Like a judge in the “umpire” model, the legitimacy comes from their role as the designated neutral arbiter. (An arrangement that ultimately privileges the designator.)

        But say a veteran ump goes to a remote island on vacation, and agrees to call a sandlot game there. However dedicated the beginning players are, and however much they can quote chapter and verse of the rules, the ump has been marinating in the game for decades, and has an authority as the possessor of a tradition, in addition to the 20/20 for the balls and strikes.

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