Supreme Court

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

An awful lot, but who's counting?

|The Volokh Conspiracy |

As I recently noted, the U.S. Supreme Court itself does not keep track of how often it has struck down a provision of a federal statute as unconstitutional. 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 related Judicial Review of Congress Database are concerned with correcting that record.

But not even Congress has tried to keep up with how often the Court has upheld a federal statutory provision against constitutional challenge. Unsurprisingly, Congress has been more interested in when the Court has gotten in its way than in when the Court has gotten out of its way. The Judicial Review of Congress Database addresses this issue as well, offering an inventory of all the cases in which the Court has substantively reviewed the constitutional validity of an application of federal law and upheld it against challenge. The figure above is derived from that database. The blue line represents the number of cases over time that have upheld a statute. It overshadows the orange line, the (corrected) count of cases striking down a law. Most laws have not been so repugnant after all.

The simple fact is that throughout its history the Court has mostly used the power of judicial review to validate congressional actions and to explain why there are no constitutional problems with the ways in which the legislature is exerting power. When a constitutional challenge has reached the Court, the justices have been far more likely to uphold a federal law than strike it down. When Congress passes innovative legislative measures that press the limits of its constitutional powers, the Court is far more likely to approve of such congressional exertions than tell Congress it has gone too far. The Court has mostly acted as a handmaiden to congressional power.

The anti-Federalist writer Brutus would not have been surprised. He warned us that the Court would, on the whole, enhance rather than limit congressional power. "[T]he judicial power of the United States, will lean strongly in favor of the general government," he predicted, and Congress would soon take its guidance on the proper scope of its power not from the Constitution itself but from what the Court has said about the Constitution and what the judges are willing to uphold and apply. As it happens, the Court is willing to uphold and apply quite a lot.

Politically, this is to be expected. The courts are able to sustain a power of judicial review because tolerating such a power is not too burdensome to other government officials. So long as the courts are mostly upholding what Congress does, Congress can abide the relatively rare occasions when the courts make a bit of trouble by striking something down.

Moreover, the justices do not magically appear on the Court. They are placed there by the same elected politicians who make the laws that the justices will be reviewing. Politicians do not make a habit of putting on the bench judges who will have deep disagreements with the constitutional vision and policy agenda of those same politicians.

Judge Richard Posner once latched onto a meme from the Iran-Contra imbroglio to ask "What am I? A potted plant?" Unlike some conservative jurists like Robert Bork, Posner favored "judicial engagement" and thought the broadly worded language of the Constitution would require active judicial interpretation to make it meaningful. Across its history, the Court has probably been inclined to agree. The justices are not potted plants, but when they set to work tinkering with the terms of the Constitution they often find that the constitutional project is best fulfilled if Congress is given ample room to roam.

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  1. “Moreover, the justices do not magically appear on the Court. They are placed there by the same elected politicians who make the laws that the justices will be reviewing. Politicians do not make a habit of putting on the bench judges who will have deep disagreements with the constitutional vision and policy agenda of those same politicians.”

    This was, formerly, blunted at least a little by the fact that confirmation was by the Senate, a body at least theoretically accountable to the state legislatures. At least until the 17th amendment. I think it’s no coincidence that the huge expansion of federal power, largely unchecked by the judiciary, took place after that amendment.

    It has been said that no man should be the judge in his own case. It is not appreciably better that a man, or level of government, should get to select the judge in his own case.

    If I had the opportunity to make just one solitary revision to the Constitution, it would be to place the confirmation of federal judges in the hands of some body of state office holders, perhaps state governors could handle this job.

    1. If I had the opportunity to make just one solitary revision to the Constitution, it would be to place the confirmation of federal judges in the hands of some body of state office holders, perhaps state governors could handle this job.

      According to the above, this would not be good bang for you buck, given the relatively light touch Justices end up having (and the presumably associated follow-on affect on the rest of the federal judiciary).

      1. I’d be trying to change the dynamic that is responsible for that “relatively light touch”. It’s due to the conflict of interest federal office holders have in selecting and confirming federal judges: Of course they tend to pick ones who won’t go hard on them!

        1. Ah. That makes more sense; I should have been tracking that.
          But then you run into institutional conflict problems: The courts are able to sustain a power of judicial review because tolerating such a power is not too burdensome to other government officials.

          Considering the legitimacy issues the Supreme Court already has, upping how often they conflict with the political branches may not have the result you want.

          1. I’d argue that a chief cause of any ‘legitimacy issues’ the Court might have, (Apart from the left’s tendency to regard any institution it doesn’t control as “illegitimate”.) is that the elected branches have, over the course of several generations, gotten habituated to a really, really lax level of judicial review.

            To the point that whenever the Court rules something they did unconstitutional, they’re genuinely shocked.

            I think they could get used to being subject to strict review, if the Court was put beyond their power to mold or punish. Might take a while.

            Anyway, if the judiciary is shading its rulings out of fear of being ignored, you’re already in a constitutional crisis, might as well have it out.

    2. “…perhaps state governors could handle this job.”

      But state governors are selected by the very same process that selects the Senators, who pass the laws you think are illegitimate.

      1. However, Senators exercise their power at the federal level, and thus have no motive to care about limiting federal power, or protecting state prerogatives. While governors exercise their power at the state level, thus they lack any motive to aggrandize federal power, while having motives to protect state power.

        The key point is that the judicial approval has to be done by somebody whose day job is exercising state, not federal, power.

        1. “…no motive to care about limiting federal power, or protecting state prerogatives.”

          They have the very same motive to limit federal power or protect state prerogatives (at least as against federal intervention) as governors. More, in fact, since governors cannot be blamed (by voters) for expanded federal scope, but Senators can.

          Since SCOTUS reviews Presidential acts too, you’d have to take the President out of nominating justices as well. Anyway, with popular election of Senators, any fear that the people are not being sufficiently represented in the appointment process disappeared.

          1. Having the President involved makes it more of a compromise; Moving the selection entirely to the state level might bias the judiciary too much in favor of the states.

            It’s a question of institutional interests, which the voters have only a very limited power to overcome.

            1. “It’s a question of institutional interests, which the voters have only a very limited power to overcome.”

              Until the 17A and direct election of federal representatives, you mean.

              1. Actually, the 17th amendment just made sure that everybody in the loop for picking federal judges had the same institutional interests: They were all people whose power would increase if the federal government faced fewer constitutional limits.

                Voting is a very problematic as a way of opposing institutional interests, because you get one vote to exercise on a huge number of issues. As witnessed, for instance, by the way the term limits and balanced budget amendments, contrary to Congress’s interests, went nowhere, despite almost every member of Congress having a majority of their constituents in favor of them at one time.

                1. “Voting is a very problematic as a way of opposing institutional interests, because you get one vote to exercise on a huge number of issues.”

                  This is just Arrow’s impossibility theorem. But that’s not a solvable problem. And in any event, why not interpret passage of the 17A as rejection of your argument?

          2. As far as judicial appointments go, I don’t think we could reasonably make this change to the existing system, but if I was starting from scratch today here is what I would consider.

            1. Appointment of the initial Chief Justice along similar lines as the current process.
            2. Chief Justice appoints (with Senate confirmation as now) the associate justices and lower court judges.
            3. If there is a vacancy in the Chief Justice slot, the associate justices together select one of their number to be the new Chief Justice who then appoints his replacement as an associate justice.

    3. I agree, although I’ve come at it from a different angle. The Constitution is an agency agreement. The states were ceding specific powers to the federal government, and denying themselves the same powers at the same time. A fairly large mistake they made was leaving the interpretation of the agency agreement to the agent instead of the principal. That’s a recipe for expansion of the agent’s powers. To fix that, I would have the Supreme Court filled by the exercise of state power, not federal power.

  2. This blog implies there is some amount of handshaking and/or winking going on between politicians and Supreme Court candidates.

    Even if that is somewhat true, I think the lifetime tenure would more that enough blunt whatever affect how the justices were initially confirmed.

    Additionally, could it also be that Congress and the Supreme Court simply do their jobs in a mostly constitutional manner?

    This is good info but I don’t see any major concerns.

    1. I don’t think it requires “handshaking”. It just requires that Presidents and the Senate be selective in who they agree to make a judge, and promote up the chain.

      You get picked to be a judge, you’re first at the lowest level, and they have a chance to observe you where you can’t “do much damage”. You get promoted, more observation.

      By the time you’re up for a Supreme court nomination, they’re going to have a pretty good idea where you stand on the extent of federal power, and if they don’t like where you stand, you’re likely not getting the nomination. Barring cases like Thomas, where a traumatic confirmation battle causes somebody to decide they’re not playing ball anymore.

      Then you factor in the law schools teaching what works, instead of some theory that gets you repeated losses before judges picked through the above system, and it becomes almost impossible to staff the Supreme court with principled originalists.

      You’d basically have to resume the former practice of nominating non-judges to the Supreme court to have a chance of putting a real originalist on there.

      1. “it becomes almost impossible to staff the Supreme court with principled originalists”

        This point would be more important were originalism not younger and less popular than Kim Kardashian.

        1. Stevens did not pretend to be engaging in originalist reasoning in his Heller dissent due to originalism being unpopular.

  3. Courts are mostly a sideshow to the main act of the culture war. They only matter at the margins, where the dominant political coalition entrenches their philosophy in court rulings. Courts are incapable of making significant social change without support from the Congress, the Executive, an either a supportive public or in some cases on issues with very low salience, an apathetic public.

    The best and most thorough analysis of this is still The Hollow Hope by Gerald Rosenberg.

    1. “Courts are incapable of making significant social change without support from the Congress, the Executive, an either a supportive public or in some cases on issues with very low salience, an apathetic public.”

      I consider that a feature not a bug.

      1. So do I, so do I. Law professors and lawyers like the idea that what they do is super-duper important. Well, it is, just not as important as they think. And activists on both sides of the aisle think they are just one SCOTUS decision away from changing the culture, when they are not, either because a court will never take seriously any argument until it has enough cultural gravitas or because there has been and continues to be massive resistance to unpopular court decision (or even popular ones).

        It took over a decade for southern schools to desegregate. A more recent example is that in jurisdictions where gun rights are not culturally supported (NY, HI, CA) Heller and McDonald are walked all over. For that matter, Heller and McDonald didn’t go far enough because the Court was afraid of backlash.

        1. Afraid of a backlash, or maybe just not all that enthusiastic about the 2nd amendment themselves.

          1. Kennedy was the culprit there, he was a squish on the subject according to the recent autobiography of another retired justice. But I also think, though without evidence, that Roberts didn’t want to overextend the Court when Obama was president, as he’d say “gun control yesterday, gun control today, gun control forever” on the front step of the White House.

    2. While while it’s true that the courts can’t impose social change without at least SOME degree of support from the elected branches or public, there’s an important factor here: The courts only need enough support from the elected branches to avoid retaliation via impeachment, or reversal by constitutional amendment. They don’t need affirmative support.

      In all likelihood, they do have greater support than that for overreaches like Roe or Obergefell. But it doesn’t have to be open support. A public show of ineffectual opposition suffices to protect the elected branches from the public, while the courts can do the dirty work and take the blame.

      1. Courts do not control the sword of the enforcement or the purse of the legislature. Either the elected branches support the courts and implement a decision, or fund it, if the decision calls for it, or it doesn’t happen. That’s why it took over a decade for the south to be desegregated, and it only happened with a large infusion of federal cash to school districts the broke down the color line. Roe was only implemented because the free market could implement the decision for the Court.

        1. My point is just that the support necessary doesn’t have to be the sort of open support that’s subject to effective challenge by the voters in a democracy. All that’s required is support in the form of ineffective opposition.

          Which the officeholders will generally be able to explain away as their just having been out-maneuvered or somehow incapable of doing anything more. Especially since effective reversal of court decisions like Roe or Obergefell, often requires super-majorities in the legislature.

  4. […] June 3, 2019 Kimberly Rogers-Brown Supreme Court, WHITE HOUSE Leave a comment Link to original article […]

  5. So is the recent downward trend in upholding laws due to a lower quality of laws being passed, judicial activism or both?

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