Supreme Court

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

More often than you might think

|The Volokh Conspiracy |

As I noted last week, there once was a robust political and scholarly debate over the answer to the question of how often the U.S. Supreme Court had struck down a provision of a federal statute. The question was thought to matter because the history implied something about how legitimate the power of judicial review might be and how aggressively the courts should use it. The answer was disputed because neither the Court nor Congress kept track of how often a law had been struck down and the correct count was not obvious.

Congress eventually got into the act. In the early twentieth century, the Senate Rules Committee began to produce a regularly updated document that reproduced the text of the U.S. Constitution, all of its amendments, and citations to Supreme Court cases "construing its several provisions." Eventually that task was handed off to the Legislative Reference Service, and after World War II the Senate Judiciary Committee engaged the eminent Princeton constitutional scholar Edward S. Corwin to take on the "highly significant and delicate enterprise" of providing a map "of the great historical landmarks of Constitutional jurisprudence" – including a list of cases in which the Court had struck down an act of Congress as unconstitutional.

The Corwin list became canonical and has since been maintained by the Congressional Research Service. But even that list went through permutations, with Corwin adding and deleting cases as he settled on exactly what he wanted his list of cases to convey.

The standard list of cases in which the Court has invalidated a federal law is inadequate. The contours of judicial review as it has been practiced are not clearly identified with bright lines. Corwin made implicit choices about what exactly he was going to count as an instance of judicial review for this purpose, and he might well have made some mistakes. There is good reason to believe that his list is underinclusive of the total number of instances in which the Court has refused to apply a federal statutory provision because it transcended the boundaries of Congress's constitutional authority.

The Corwin list significantly understates how often the U.S. Supreme Court has used its authority to interpret and enforce constitutional limitations on the scope of the legislative authority of Congress. Some cases have simply been lost in obscurity. Some cases do not feature the Court using the magic words, "null and void." Some cases involve the Court punching a gaping hole in a statutory provision out of respect for constitutional requirements while leaving the text intact and some set of possible applications theoretically still available.

I decided to start from scratch and read thousands of U.S. Supreme Court cases that could plausibly have said something about the constitutional limits to the legislative power of Congress. From that, I have constructed a new Judicial Review of Congress database that 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.

Although throughout its history the Court most often upheld congressional statutes against constitutional challenge, it has enforced constitutional limits against Congress in far more cases than has been conventionally recognized, including a sizable number of cases during the first decades of the Court's existence when we have traditionally said that the justices were never willing to defy the will of Congress.

The Judicial Review of Congress Database is now publicly available. It 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, 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 details of the standard for case selection and the process of identifying instances of judicial review are elaborated in the appendix to my book, Repugnant Laws. Over time I expect to update the database, add new variables, and create some more reader-friendly lists of the some 1300 cases in which the Court exercised the power of judicial review over Congress.

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  1. I believe that the answer to the question posed by the headline is “never.” Courts do not have the power to “strike down” (whatever that means) a statute. They can declare a statute unconstitutional, and they can refuse to apply it, or enjoin a governmental official from enforcing it, for that reason. But the Court “cannot make even an unconstitutional statute disappear.” Steffel v. Thompson, 415 U.S. 452, 469 (1974) (quoting Perez v. Ledesma, 410 U.S. 82, 124 (1971) (Brennan, J.)). As then-Judge McConnell put it, “[t]here is no procedure in American law for courts . . . to purge from the statute books laws that conflict with the Constitution as interpreted by the courts.” Winsness v. Yocom, 433 F.3d 727, 728 (10th Cir. 2006). The statutes (unless repealed) are still there, and if the Court’s jurisprudence changes, can be enforced.

    1. Yes, the answer is “never” if you employ a sense of “strike down” that no one employs.

  2. Could you explain your conclusion re: Mossman? Which part of the Judiciary Act did the Court strike down? Did the original judiciary act purport to apply to suits between two aliens? Because that isn’t obvious at all from the opinion, which could just as easily be interpreted as upholding the referenced section of the Judiciary Act.

    Is there not a distinction between the Court saying: “We have jurisdiction to answer this question, and we answer it in a way that invalidates the statute” and “The Constitution does not give us jurisdiction to answer this question, and Congress has no power to manufacture jurisdiction”? It seems to me that when most people discuss SCOTUS exercising judicial review, they have the first in mind. SCOTUS declining to exercise jurisdiction over a case seems like the opposite of judicial review.

  3. I’d like to see some examples of cases you include but Corwin doesn’t, with an explanation why. Especially if there’s any explanation from Corwin of why he didn’t include it.

  4. This is interesting, but I can’t help but think that this not really an area susceptible to hard data analysis. Say, for example, Congress passed a law saying no contract with a foreign person for labor or services performed in the US was to be allowed, and a church got into trouble for hiring a foreign minister. The Court then says that, contrary to the plain terms of the statute, the law only prohibited unskilled laborers, and a Christian nation would never pass a law against the importation of a minister. Is the law overruled? Given a limiting construction? Sustained in its plain terms?

    The better empiric might be those cases in which the dog barked, i.e., Congress construed the holding as overruling the law, resulting in some statutory or codification revision. Also, Corwin likely retained the as-applied/facial challenge designation as a service to his Congressional masters (cf. fn3 of the appendix) so that they could recodify as needed, but the designation also says a lot about the scope of the opinion — might be wise to incorporate it in the dataset.

  5. Got around to reviewing the database today. Great work, and props for the transparency and for letting other scholars use the database.

  6. Hi Keith,

    First off, thank you for doing this. I’m not professionally involved in law in any way, but I do find it a fascinating subject about which to read and learn. I also love large datasets like this, as they tend to allow for bigger picture analysis of otherwise hard-to-summarize subjects. So, thanks!

    Second, I thought I might mention that, at least for me, your hyperlinks on the “here” at the end of each sentence all** lead to the same page (https://scholar.princeton.edu/kewhitt/publications/judical-review-congress-database). Perhaps you have simply not had the time to upload those additional items, but I figured I’d call it out in case it was a mistake.

    **With the exception of the one re: more information on ‘Repugnant Laws’

    Thanks again for making this!

  7. […] Congress eventually decided that an inventory was needed, but there is good reason to think we have underestimated how often the Court has enforced constitutional limits on Congress. My new book, Repugnant Laws, and the […]

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