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Journal of Legal StudiesJune, 2011

*467 THE MULTIPLE-STAGE PROCESS OF JUDICIAL REVIEW: FACIAL AND AS-APPLIED CONSTITUTIONAL CHALLENGES TO LEGISLATION BEFORE THE U.S. SU-

PREME COURT

Stefanie A. Lindquist, Pamela C. Corley [FNa1 ]

Copyright 2011 by The University of Chicago; Stefanie A. Lindquist, Pamela C. Corley

ABSTRACT

The Supreme Court's decision to invalidate a legislative enactment involves both the choice tostrike as well as the choice whether to invalidate the statute on its face or as applied. Both choicesimplicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices'choices to invalidate a state or federal enactment on its face or as applied and find that the justicesare responsive to congressional preferences concerning the substance of the legal challenge atboth stages of judicial review. Other factors systematically affect the justices' decisions as well,including the legal basis for the challenge, the statutory scope of the constitutional challenge, thepresident (through the solicitor general), and interest groups' amicus filings. These findings sug-gest that the Court's exercise of judicial review is significantly influenced by Congress and by oth-er contextual, legal, and political factors, both as to the choice to strike as well as to the method of

constitutional enforcement.

1. INTRODUCTION

The most important institutional prerogative enjoyed by U.S. Supreme Court justices is theirpower to determine the constitutionality of federal and state legislation. Many view this power asessential to our system of separated powers because it enables the justices to ensure that the *468elected branches and the states remain faithful to their constitutional limitations. [FN1 ] At thesame time, however, the justices' own insulation from electoral accountability creates the potentialfor judicial review to produce countermajoritarian results, a prospect that has long centered as apoint of controversy and concern among legal academics (see Bickel 1961; Friedman 1993).

When an unelected judiciary invalidates legislation produced by the elected branches (at the stateor federal level), the result arguably conflicts with fundamental principles of democratic self-governance. Nevertheless, for the countermajoritarian difficulty to have any normative bite, theCourt's actions must actually be countermajoritarian (Friedman 1993). Otherwise, there is no di-lemma: to the extent that the Court renders decisions in conformity with majoritarian preferences,it is, in fact, acting to serve democratic principles of self-governance by furthering the objectivesof the democratic majority.

Since the time of Dahl's (1957) seminal piece analyzing the Court's exercise of judicial re-view, political scientists have developed a substantial body of literature questioning the Court'scountermajoritarian credentials. First, scholars have presented findings to suggest that the Court israrely out of step with the public mood when it evaluates the constitutionality of governmental ac-

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tion (for example, Mishler and Sheehan 1993; Marshall 1989; Friedman 2009). Second, researchhas found that the Court may respond to the preferences of elected officials sitting at the time of the Court's decision evaluating a statute's constitutionality (see, for example, Spiller and Gely

1992; Bergara, Richman, and Spiller 2003; Lindquist and Solberg 2007; Harvey and Friedman2006; but see Sala and Spriggs 2004). These studies confirm the notion that the Court's position asone of three separate branches sharing power may substantially constrain its decision-making dis-cretion. They also suggest that the Court may act strategically in the context of judicial review byanticipating the preferences and actions of the elected branches to the Court's decisions. Epstein,Knight, and Martin (2001, p. 585) describe the Court's strategic motivations in the context of judi-cial review:

[G]iven the institutional constraints imposed on the Court, the justices cannot effectuatetheir own policy and institutional goals without taking account of the goals and likely ac-tions of the members of the other branches. When they are attentive to external actors, justices find that the best way to have a long-term effect on the *469 nature and content of the law is to adapt their decisions to the preferences of these others. In this sense, the resolu-tion of the countermajoritarian difficulty results in an important effect of the separation of powers system: a strategic incentive to anticipate and then react to the preferences of electedofficials.

Yet the justices' opportunities to act strategically when exercising the power of judicial revieware not limited solely to the decision to invalidate or uphold a challenged statute. Instead, the de-cision to invalidate a legislative enactment also involves a second potentially strategic choice:whether to invalidate the statute on its face or as applied. Assuming that the Court chooses to in-validate legislation on constitutional grounds, it often has the choice to invalidate the statute on itsface, whereby the Court finds that it must be invalidated as to all possible applications and is thusrendered null and void. Alternatively, the Court may invalidate the statute only as applied to theplaintiff's particular circumstances, in which case the statute remains valid for other applicationsthat do not raise similar constitutional concerns.

This second stage of the constitutional analysis has received considerable attention from lawprofessors (Fallon 2000; Dorf 1994; Isserles 1998; Gans 2005). Political scientists have failed toconsider the importance of this critical element of the constitutional decision tree, however, per-haps because it requires consideration of case outcomes beyond a simple dichotomous measure re-flecting which party prevailed on appeal. This oversight is understandable, but it has resulted in animpoverished understanding of the strategic nuances associated with judicial review. No doubt thechoice to invalidate clearly implicates the possibility of counteraction by the legislature and exec-utive. But once that choice is made, the Court has an additional opportunity to moderate the im-

pact of a judicial invalidation by striking the statute as applied rather than on its face. This optionto strike a statute solely as applied to the individual litigants (or a particular class of persons af-fected by the statute) arguably allows the Court to mitigate the effect of its constitutional rulingsby limiting their impact. In contrast, facial invalidations constitute a much more pronounced insti-tutional challenge to other governmental actors because they result in complete nullification of thechallenged law.

In this paper, therefore, we evaluate the justices' choices to invalidate a state or federal enact-ment on its face or as applied throughout the Burger and Rehnquist Courts. We begin by modelingthe justices' votes to uphold or invalidate federal or state laws. We then take the analysis *470 onestep further. Assuming that an individual justice votes to find the statute constitutionally infirm,we then model the justice's choice regarding whether the statute should be invalidated on its face




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or as applied. We do so through a theoretical lens that assumes that the justices are strategic actorswho consider the consequences of their actions vis--vis other critical actors in the system of sep-arated powers. In particular, given the potential for retaliatory action, Supreme Court justices may

be particularly sensitive to the preferences of members of Congress regarding the constitutionalchallenges before them. Because Congress cannot act alone in responding to the Court or may besensitive to interest group pressure, we also take into consideration the preferences of the presid-ent (as manifested through the position of the solicitor general) and interest group pressure viaamicus filings.

We find that, with respect to the decision whether to strike legislation, the justices' choices aredependent on congressional preferences regarding the ideological direction of the parties' chal-lenge to the enactment under review. In addition, we find that the justices' choice to strike a stat-ute is influenced by whether the solicitor general supports the statute as amicus and the degree of amicus support or opposition to the statute. With respect to the decision whether to invalidate astatute on its face or as applied, the justices' choices are also dependent on congressional prefer-ences concerning the nature of the constitutional challenge; justices are more likely to strike stat-utes on their face when the ideological direction of the constitutional challenge is consistent withthe preferences held by members of the sitting Congress. These findings suggest that judicial re-view of legislative enactments is substantially shaped by dynamics associated with the separationof powers (SOP), both in the decision whether to invalidate an enactment and in the decision re-garding the method of that invalidation. It also supports the prevailing wisdom that concernsabout the Court's countermajoritarian results are minimized by the influence of the electedbranches on its decisions.

2. JUDICIAL REVIEW AND THE METHOD OF INVALIDATION

Although judicial review is not specified in the U.S. Constitution and was rarely employed un-til the twentieth century, federal courts have enjoyed the power to invalidate legislation enactedby the federal and state governments at least since the time of Marbury v. Madison (5 U.S. [ 1Cranch] 137 [1803]) , if not before (Bilder 2008). Because judicial review requires application of vague clauses in the Constitution, the *471 practice has resulted in the Court's development of various tests and doctrines to provide specific content to constitutional provisions for purposes of implementation in individual cases. Examples include the levels-of-scrutiny analysis under theFourteenth Amendment, the distinction between content-based and content-neutral restrictions un-der the First Amendment, or the expectation-of-privacy test under the Fourth Amendment. Thesedoctrinal tests or frameworks have enormous practical significance because they enable federal judges to evaluate legislative action in context in the real world. [FN2 ] As one academic observes,To make the document into a set of legal rules that lower courts can enforce, the Court musttranslate the Constitution's lofty values into effective rules (Gans 2005, p. 1333; see also Berman2004).

In doing so, however, the Court must consider not only the substantive standards it will em-ploy to evaluate legislative action under the Constitution but also the method of enforcement itwill use to invalidate unconstitutional laws. The Court essentially has two options. It can take amore maximalist approach to invalidation by striking the legislation as to all future applications,thus nullifying the law (or portion of the law) in its entirety. In contrast, it can adopt a more min-imalist approach that would encourage case-by-case adjudication of individual applications by in-validating a statute's provisions only as applied to the plaintiff (or specific class of persons, in-

cluding the plaintiff) and her unique circumstances (see Sunstein 1999). Facial invalidation min-


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imizes the chilling effect of laws by essentially recognizing that statutes have impact beyond thelitigant before the Court; it may also be seen as a loosening of justiciability requirements, to theextent that facial challenges recognize the interests of third parties not before the Court. In short,

facial invalidation unleashes the strongest form of constitutional constraint on state and federal le-gislations by invalidating the offending statute in toto. [FN3 ]

On the other hand, the as-applied approach maximizes legislative prerogatives and ensuresthat courts decide cases on the basis of concrete *472 facts presented in live disputes. [FN4 ] Butbecause they focus on and are limited in their application to particular factual scenarios, as-applied invalidations have an important practical implication: they require citizens to bring poten-tially multiple as-applied challenges to vindicate constitutional rights. [FN5 ] Perhaps most import-ant for our analysis, as-applied invalidations leave the challenged statute on the books for futureapplication in circumstances that do not raise constitutional concerns. In that sense, an as-appliedinvalidation mitigates the effect of the constitutional ruling by limiting its impact.

Because of these practical and legal implications of the method of constitutional enforcement,the distinction between facial and as-applied invalidations has garnered considerable scholarly in-terest of late (see Gans 2005; Fallon 2000; Dorf 1994; Adler and Dorf 2000). In part, this interestwas promoted by a 1986 Supreme Court ruling setting forth a doctrinal standard regarding whenfacial invalidation is appropriate. In United States v. Salerno (481 U.S. 739 [1986]) , the Court laiddown a standard that strongly favored as-applied challenges and invalidations, emphasizing that alitigant bringing a facial challenge to a legislative enactment bears a heavy burden to prove thatthe challenged law cannot be constitutionally applied in any set of circumstances. According toChief Justice William Rehnquist, author of the majority opinion, [T]he challenger must establishthat no set of circumstances exists under which the Act would be valid (481 U.S. 745). Thus,Salerno stands for the proposition that the Court prefers to invalidate statutes as applied to the in-

dividual litigants in the case, since doing so preserves institutional values associated with judicialrestraint, eliminates concerns over third-party standing implicated by consideration of statutoryapplications beyond the plaintiff's individual circumstances, and limits the potential that theCourt's ruling constitutes an advisory decision regarding cases yet to be presented and argued be-fore the Court.

*473 Salerno has hardly provided the last word, however, as even Supreme Court justicescontinue to debate the appropriateness of facial invalidations in the pages of the United States Re- ports . These debates have been most prominent between Justice Antonin Scalia, who protests thatfacial invalidations are almost never appropriate, and Justice John Paul Stevens, who often took the opposite view. In light of these debates, Fallon (2000, p. 1386) remarks that it is tempting tosay that the Justices of the Supreme Court are not only divided, but also conflicted or even con-fused, about when statutes should be subject to facial invalidation. Other commentators similarlylament the lack of coherence in the Court's approach to the method of invalidation, with one re-marking, In short, the law in this area is a mess (Hartnett 2006, p. 1751).

The confusion over the distinction between facial and as-applied invalidations is exacerbatedby certain exceptions to the general preference for as-applied challenges, depending on the legalbasis for the suit. Specifically, there are certain categories of cases in which the Court decided tostrike the statute facially rather than as applied (see Gans 2005; Franklin 2006, 2009). In the con-text of First Amendment challenges in particular, the Court has determined that facial invalida-tions are most appropriate as a means to ensure that questionable statutes do not chill free speech.Better in such cases, from the standpoint of First Amendment values, to invalidate the challenged

regulation on its face, even at the cost of leaving some proscribable speech untouched, than to


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keep it on the books and chill speech (Franklin 2009, p. 11). Thus, the Court has formulated thedoctrine of overbreadth that constitutes an exception to its general proscription against third-partystanding (Monaghan 1981). Furthermore, in Sabri v. United States [541 U.S. 600 (200 4) , the

Court listed other areas in which facial overbreadth challenges have been recognized, includingthe area of abortion rights. Moreover, the Court has struck down laws involving the commerceclause on their face without even considering if they would be unconstitutional in all circum-stances (see Persily and Rosenberg 2009; Stewart 2004).

Thus, even in light of Salerno 's apparently rigorous standard for facial invalidation, the Courtnevertheless continues to strike statutes on their face quite frequently. Indeed, scholars have re-cognized that the Court invalidates statutes on their face far more frequently than the doctrinalstandards would suggest (Metzger 2005; Dorf 1994), reflecting, as they observe, a mismatchbetween the justices' rhetoric about the presumption *474 in favor of as-applied challenges andthe reality of their decisional outcomes. [FN6 ]

Why is the Court's approach to facial and as-applied challenges and invalidations so confused,with its rhetoric in favor of as-applied challenges so apparently inconsistent with its decisional be-havior? One explanation for the Court's lack of clarity concerning these methods of invalidationmay involve the justices' efforts to build consensus behind the Court's decisions, with disagree-ment over basic substantive law principles causing justices to play ... loose with thesesecond-order doctrines [as] one avenue to crafting a decision that speaks for a Court majority(Persily and Rosenberg 2009, p. 1646). Another explanation is that the justices use the facial/ as-applied distinction in certain circumstances to avoid overruling precedent directly or to under-cut the precedential force of an existing ruling. In FEC v. Wisconsin Right-to-Life [546 U.S. 410(2006) ], for example, the Court sustained an as-applied challenge to the Bipartisan Campaign Re-form Act's regulation of political advertisements using an expansive test that invalidated the act as

applied to a wide swath of communications, even though the Court, just 3 years earlier in McCon-nell v. FEC [540 U.S. 93 (2003 )] had upheld the same provision when challenged on its face. Thedistinction between as-applied and facial challenges may thus serve the justices' strategic object-ives vis--vis coalition formation or precedent avoidance (see Metzger 2009, pp. 23-24). As Met-zger (2009, p. 24) observes, That the facial/as-applied distinction is employed to such strategicends is nothing new.

A third explanation for the apparent confusion and conflict among the justices regarding theappropriate method of constitutional challenge and invalidation has to do with the justices' person-al preferences concerning the statutory provision at issue. Metzger and others argue that the justices' propensity to invalidate certain statutes on their face may be driven by the underlyingsubstantive constitutional law and the justices' preferences for certain results. She notes, for ex-ample, that the willingness to facially invalidate gun control laws in District of Columbia v. Heller [554 U.S. 507 (2008)], without explaining why as-applied challenges *475 were not required,might have been result-driven at root (Metzger 2009, p. 24). Others have observed this apparentorientation toward results in alternative contexts. For example, in the abortion and gay rightscontexts, Justice Scalia resists facial challenges ... while Justice Stevens happily finds statutes un-constitutional on their face (Hartnett 2006, p. 1751). In contrast, in cases brought challengingCongressional authority under section 5 of the Fourteenth Amendment, Justice Antonin Scalia isreceptive to facial challenges, while Justice Stevens prefers as-applied invalidations (Hartnett2006, pp. 1751-52). Essentially recognizing that the justices' personal policy preferences influencethese decisions (see Segal and Spaeth 1993), legal scholars observe that individual Justices oftenappear to switch between defending, distinguishing, and outright ignoring the preference [between


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facial and as-applied invalidations] when it suits their purposes (Kreit, 2010, p. 9; see also Met-zger 2009).

These observations suggest that the justices' choices regarding the appropriate method of in-validation are driven, at least in part, by considerations that appear inconsistent with Salerno 'sblanket doctrinal presumption in favor of as-applied invalidation, including the justices' prefer-ences for the underlying statute. Further reflection suggests another explanation for the justices'preference for one method over another that stems from positive political theory. As we noted, if astatute is struck on its face, the government may not enforce the statute under any circumstances,while if a statute is struck as applied, the statute remains on the books and may continue to be en-forced in different circumstances (Metzger 2005). The former method of invalidation thus has fargreater institutional implications simply because it eradicates the statutory provision in its en-tirety, posing a more pronounced challenge to the institutional prerogatives of the legislature. If the justices are sensitive to this implication, they may choose to moderate the impact of their con-stitutional rulings strategically by striking statutes as applied rather than on their face.

Such a hypothesis is consistent with positive political theories of the Court, which posit thatthe justices are influenced by, and strategically respond to, potential reactions to Court decisionsby the elected branches. To be sure, the Court's constitutional rulings are difficult to override,generally requiring a constitutional amendment to do so. On the other hand, Congress and thepresident may employ other mechanisms to punish the Court for unwelcome rulings. Rosenberg(1992, p. 377) catalogues these mechanisms as follows: (1) using the Senate's *476 confirmationpower to select certain types of judges; (2) enacting constitutional amendments to reverse de-cisions or change Court structure or procedure; (3) impeachment; (4) withdrawing Court jurisdic-tion over certain subjects; (5) altering the selection and removal processes; (6) requiring ex-traordinary majorities for declarations of unconstitutionality; (7) allowing appeal from the Su-

preme Court to a more representative tribunal; (8) removing the power of judicial review; (9)slashing the budget; (10) altering the size of the Court.

Empirical studies indicate that the threat of these responses is often effective in constrainingthe Court. Indeed, although the justices enjoy life tenure and undiminishable salaries, researchershave evaluated whether the justices moderate their behavior in rational anticipation of actions byCongress and/or the president. For example, the Court responds to budgetary constraints imposedby Congress in its rulings in civil liberties cases (Toma 1991), court-curbing legislation affects theCourt's willingness to invalidate acts of Congress (Clark 2009), and current administrations influ-ence the voting of individual justices' voting behavior in civil liberties cases (Epstein, Knight, andMartin 2001). And in their study of congressional responses to Supreme Court constitutional de-cisions, Meernik and Ignagni (1997, p. 458) conclude that, contrary to popular and scholarlyopinion, the Congress can and does attempt to reverse Supreme Court [constitutional] rulings. Fi-nally, a recent study, using a statute-centered rather than a case-centered analysis, uncovered evid-ence of considerable congressional constraint on the Court's constitutional rulings (Harvey andFriedman 2006). Together these findings indicate that, even in constitutional cases, strategic justices may produce outcomes that deviate from their ideal preferences in the short term in orderto preserve institutional power or achieve broader policy objectives in the long term.

Given that facial invalidations constitute a more severe rebuke to the legislature than an as-applied invalidation, SOP constraints may also cause the justices to moderate a constitutional de-cision's impact with an as-applied ruling when they anticipate that the sitting Congress favors theinterests furthered by parties bringing the constitutional challenge. Nor are such strategic consid-

erations limited solely to judicial review of federal enactments. To be sure, in the case of constitu-




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tional invalidation of congressional action, the Court's decision directly challenges the decisionsof a coordinate branch. In that situation, the Court's decision may invite an adverse congressionalresponse because members of Congress view the decision as a challenge to their institution's

power. But *477 where the Court invalidates a state enactment, the decision may also tread oncongressional preferences and thus invoke legislative responses for several reasons. First, Con-gress may respond to judicial invalidation of state enactments because of constituency pressures.Court decisions regarding prayer in public schools, abortion, desegregation, and school businghave all generated tremendous public outcry and Congressional denunciation (Meernik and Ig-nagni 1995, p. 44). Second, judicial decisions invalidating state legislative acts may have implica-tions for congressional enactments as well; when the Court invalidates a state law regulating abor-tion, for example, it reduces federal power to regulate abortion at the same time. Thus, while itsown power may not be directly affected by the Court ruling, significant concerns regarding federalpower may be (Meernik and Ignagni 1995, p. 57). Third, members of Congress not only repres-ent their individual constituents; they also serve as important representatives of state interests at

the federal level--especially in the Senate. Members of Congress may therefore be sensitive to theCourt's encroachment on state legislative power in light of these state affiliations. As a result of these considerations, one might expect that the same institutional or SOP constraints operate whenthe Court evaluates the constitutionality of federal or state legislation.

The preceding discussion suggests that the justices' choices to invalidate legislation on its faceor as applied may be driven both by the justices' preferences for the underlying statute as well asby SOP dynamics that cause the justices to act strategically in order to avoid confrontation withthe elected branches. We now turn to our approach to evaluating these hypotheses by, first, de-scribing the data we use to construct our model of judicial review and, second, specifying the hy-potheses we test and the variables we use to test them. We then describe the results of our modelestimation procedure.

3. MODELING JUDICIAL REVIEW

3.1. Dependent Variables

Our project is to evaluate the influences on the justices' decisions to strike down legislation onconstitutional grounds, with a focus on the method by which the justices invalidate legislation. Toevaluate the justices' behavior, we collected data on the individual justices' votes to uphold or in-validate state or federal laws (in whole or in part) from the *478 1969-2004 terms (the Burger andRehnquist Courts). [FN7 ] We then examined each vote to invalidate in order to determine whether

the justice voted to invalidate the statute on its face or as applied. [FN8 ] This coding process gen-erated a database of 6,590 votes to strike or uphold state, federal, or local legislation from 1969 to2004 (coded one if the justice voted to strike and zero otherwise) and 3,212 votes to strike anypart of the statute on its face (coded one) or as applied (coded zero).

3.2. Congressional Restraint: Hypotheses

As explained above, SOP models suggest that the Court responds to the preferences of otheractors in cases challenging the constitutionality of state and federal legislative enactments. First,the justices may be concerned that the elected branches will attempt to override or undermine theCourt's constitutional decisions either statutorily or via constitutional amendment. In this sense,

the justices may be most sensitive to the preferences of members of Congress concerning the out-




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come of the specific case before them. Moreover, we expect that the justices respond to congres-sional preferences at both stages of the decision since striking a statute as applied poses less of achallenge to Congress's or the states' institutional prerogatives.

One way to think about the manner in which congressional preferences may constrain the justices is to consider the scope of judicial discretion under alternative scenarios. We conceptual-ize legislative constraint *479 in terms of the nature of the challenge brought to the statute and theconfiguration of the sitting Congress's preferences at the time the justices consider each challenge.Assume a hypothetical case in which the justices are considering a constitutional challengebrought by a liberal interest group to a prevailing state or federal enactment. If at the time of thechallenge, congressional preferences are extremely conservative, the justices may be less inclinedto accommodate the liberal constitutional challenge because such a liberal result would be lessfavored by the sitting legislature. In that sense, the prevailing preferences in Congress may con-strain the justices' discretion as they consider the substance of the constitutional claim beforethem. The same relationship may exist in the opposite direction, and the degree of constraint islikely to be more pronounced as congressional preferences become more extreme in the conser-vative or liberal direction (depending on the direction of the constitutional challenge). The justices' discretion will be at its maximum, however, when the ideological interests furthered bythe constitutional challenge are consistent with the prevailing preferences in the sitting Congress.Figure 1 provides a graphical representation of the relationship between the justices' preferences,the ideological direction of the constitutional challenge to the statute at issue, and the sitting Con-gress's preferences.

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

Figure 1. Relationship between likelihood of striking and congressional preferences

This approach has several advantages from the standpoint of empirical evaluation. First, itavoids the difficulties inherent in categorizing statutory content along a liberal/conservative di-mension, a challenge that is difficult to overcome especially in the case of state statutes. Second,it enables us to focus on the nature of the legal challenge to the statute rather than on the ideolo-gical tenor of the challenged enactment. *480 Whether a statute embodies a liberal, conservative,or moderate policy may differ from statutory provision to provision within a single enactment, es-pecially given the strategic nature of the legislative process. Amendments added by more conser-vative members of the legislature may moderate the impact of a statute with more liberal policyobjectives (consider Title VII or the Voting Rights Act, for example). Such conservative amend-ments may ultimately be challenged by individuals or groups representing more liberal interests,

even when the full statute furthers an otherwise liberal or moderate overarching policy objective.On the other hand, the nature of the legal challenge is more easily defined within the context of individual cases, and well-developed databases enable the nature of such challenges to be meas-ured through references to the legal basis for the challenge or the parties bringing suit.

On the basis of this hypothesized relationship between congressional preferences concerningthe challenged statute and the justices' willingness to strike that legislation, therefore, we offer thefollowing hypotheses to be tested empirically:

Hypothesis 1. A justice will be more likely to vote to strike a statute as the sitting Congress'spreferences become increasingly aligned ideologically with the interests of the parties bringing theconstitutional challenge.




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Hypothesis 1A. A justice will be more likely to vote to strike a statute on its face when the sit-ting Congress's preferences become increasingly aligned with the interests of the parties bringingthe constitutional challenge.

Finally, we also note that congressional influence in either form may be more pronounced forthose justices in the majority, since justices voting in dissent may be less concerned about the in-stitutional impact of their decisions. As a further test of our hypotheses, therefore, we evaluate theinfluence of congressional preferences on justices in the majority only, and we take up this addi-tional analysis in the discussion of our results.

3.3. Congressional Preferences: Measurement

To test these hypotheses, we need to measure congressional preferences concerning the natureof the legal challenge brought against the particular statute in each case. Spaeth's Supreme Court

Database codes the ideological direction of case outcomes based on the parties involved or thelegal basis for the suit following conventional coding procedures *481 used in political scienceliterature on the courts. [FN9 ] The measure Congressional Support for Challenger reflects the de-gree to which the preferences of the median members of each chamber are consistent with the dir-ection of the legal challenge brought to each enactment. We calculate congressional preferencesas the mean of the two chambers' median Judicial Common Space (JCS) scores (Epstein et al.2007). [FN10 ]

This variable was created by, first, identifying the direction of the legal challenge to the enact-ment on the basis of the Spaeth database (coded as liberal [1)] or conservative [--l]). [FN11 ] Sincethe JCS scores are continuous, with positive values associated with liberal positions and negativevalues with conservative positions, [FN12 ] we multiplied the ideological direction of the chal-lenge by the congressional mean to create a variable reflecting the degree to which members of Congress prefer the challenge ideologically. Higher values for this variable are thus associatedwith increasing ideological preference for the liberalism or conservatism of the challenge brought.For example, when a liberal challenge is before the Court and Congress is liberal, Congress ismore likely to prefer the position taken by the challenger. If Congress's preferences influence the justices, therefore, they should be more likely to strike a statute facing a liberal challenge whencongressional preferences are consistent with those of the challengers. When a statute faces a lib-eral challenge and Congress is more conservative, however, the opposite influence should arise.Since this variable increases in value as congressional preferences increase concerning the chal-lenge, we expect a positive sign on this variable's coefficient; that is, the justices should be morelikely to strike as congressional preference for the challenger's position increases.

*482 3.4. Control Variables

3.4.1. Decision to Strike . We control for a number of other influences on the justices' choiceto invalidate the challenged enactment (the first stage of our analysis). Without question, the justices' votes are substantially influenced by their personal policy preferences (Segal and Spaeth1993, 2002). Specifically, Segal and Spaeth (2002) find that, during the Rehnquist Court, justices'votes to invalidate or uphold actions of federal, state, and local authorities were dominated byideological considerations, with liberal justices voting to strike conservative statutes and with con-servative justices voting to strike liberal statutes. Sala and Spriggs (2004) also find that attitudinalconsiderations dominate the justices' voting behavior in challenges to federal legislation. Thus, we

expect that as the distance between the justice's ideology and the ideological direction of the con-




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stitutional challenge increases, the justice will be less likely to strike the statute. To create a pref-erence measure for the individual justices (Justice Support for the Challenger), we use the sametechnique described above to measure congressional preference for the challenge (that is, we mul-

tiplied the justice's JCS score by the ideological direction of the challenge to create a judicial pref-erence measure). Justices closer to the center of the Court therefore reflect less extreme ideologic-al reactions to the direction of the challenge at issue. [FN13 ] As with the measure of congression-al preferences, we expect a positive coefficient for this variable.

In addition, SOP effects are not limited to the legislature; the president also has a role to playin constitutional litigation before the Court. For that reason, it is critical to add variables reflectingthe role of the solicitor general. To do so, we code three separate variables. First, we code whetherthe solicitor general appeared before the Court representing the federal government as a directparty in the litigation in support of the challenged law. Because the solicitor general also fre-quently appears as amicus at the Court's request, we code whether the solicitor general supportedor opposed the statute's constitutionality in that role. Although as an alternative approach wecould have used the president's JCS score to account for his ideological position relative to thechallenger, we concluded that incorporating variables reflecting the solicitor general's *483 posi-tion in the litigation is likely a more accurate reflection of presidential preferences (Meinhold andShull 1998).

Like the solicitor general's participation, filings by amicus curiae may influence the Court'sdecisions on the merits; recent research indicates that amicus briefs influence the justices' votes onthe merits as well as at the case selection stage (Collins 2008). To evaluate the impact of amicuson the justices' votes, we code a variable measuring the number of amicus briefs filed in supportof the statute's constitutionality and a variable measuring the number of amicus briefs filled in op-position to the statute.

The statute's age may also be a relevant consideration, but two opposing arguments can bemade regarding the expected influence of a law's age on the Court's deliberations. First, to the ex-tent that the Supreme Court's interpretation of the Constitution changes over time, older statutesmay be more vulnerable to invalidation under a new constitutional regime created at a later date(Lindquist and Solberg 2007). Moreover, Dahl's early research indicates that the Court generallyprefers statutes enacted by the dominant ruling coalition at the time of the Court's decision and ismore likely to strike statutes that are more than 4 years old (Dahl 1957). On the other hand, onemight argue that older statutes are more likely to be upheld because they have stood the test of time. This is consistent with findings regarding the Court's interpretation of its own precedents: asprecedent ages, the probability of being positively interpreted decreases until the precedent be-comes very old, at which point positive interpretations increase (Hansford and Spriggs 2006). Thisinfluence may mitigate in favor of both a finding that the statute is constitutional and a choice toinvalidate as applied rather than on the statute's face. To test these alternative hypotheses, we in-clude a variable in our model reflecting the age of the challenged statute in years.

Throughout the course of history, the Supreme Court has, overall, demonstrated far greater de-ference to federal than state statutes, striking down more than twice as many state laws as federallaws and at a greater rate (Solberg and Lindquist 2006). Thus, we control for the source of thestatute (coded one if a federal law and zero if a state law). We expect that the justices will be lesslikely to strike a federal statute than a state statute.

We also include a variable reflecting whether the lower court invalidated the statute at issue.

Because the Supreme Court generally reverses approximately two-thirds of the decisions it ac-




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cepts for review, this variable is likely to provide a strong predictor of the justices' decision to*484 strike or uphold on appeal and controls for selection bias in the certiorari process. Finally,we control for the scope of the constitutional challenge by coding a variable reflecting the number

of separate statutory provisions at issue in each case. Where multiple statutory provisions arechallenged, the justices may be more inclined to strike the statute because of more systemic prob-lems in the policy scheme.

3.4.2. Decision to Strike Facially versus As Applied . When examining the justices' votes tostrike a statute on its face or as applied, we include several of the same variables used to estimatethe choice whether to strike but add additional variables uniquely relevant to the method of inval-idation. First, we include a variable measuring congressional support for the challenger and a vari-able reflecting the justice's preferences regarding the challenge. We also include the position of the solicitor general in favor of or in opposition to the statute's constitutionality and the number of amici favoring or opposing the statute. To control for the types of arguments made to the Court,we incorporate a variable reflecting whether the party challenging the statute argued that it shouldbe invalidated only on its face (coded one if the party made any argument that the statute was in-valid only on its face and zero if the party argued that the statute was invalid as applied or, in thealternative, that the statute was invalid on its face). We expect that if the party limits its argumentsto a facial challenge, the justices are more likely to strike the statute on its face as well.

To control for doctrinal influences, we include a variable reflecting decisions rendered afterSalerno was decided, coded one for decisions after 1986 and zero for those before 1987. Quitesimply, we expect that the justices will be less likely to strike the statute on its face after Salerno .Moreover, we incorporate several variables to control for issue areas in which a justice may bemore likely to declare a statute facially unconstitutional: First Amendment Free Speech, Com-merce Clause, and Abortion. [FN14 ] We also include a control for the source of the statute at is-

sue, coded one for a federal statute and zero for a state statute. We expect that the Court will beless likely to strike a federal statute on its face than a state statute. Finally, we include a variablereflecting the number of statutory provisions at issue. When the challenge involves multiple *485provisions, the justices may be more inclined to strike the statute on its face because of greaterdifficulties with severance and because it may reflect deeper constitutional problems with theoverarching policy embodied in the statute.

3.5. The Structure of the Justices' Choices

We have explained that the justices are faced with two choices when evaluating the constitu-tionality of a federal or state statute: they must decide whether to strike and, if so, whether to

strike on the statute's face or as applied. In order to select the appropriate statistical method tomodel these choices, we explored various possibilities that reflect different assumptions about the justices' underlying decision-making process in constitutional cases. Several alternative ap-proaches exist based on different assumptions regarding the interdependence between the justices'choice to strike the statute and the method of invalidation used to do so.

The first possibility is that the justices follow a two-stage decision process whereby the choiceto strike is undertaken prior to the choice of the method of invalidation, as illustrated in Figure 2.In this situation, the justice makes an initial choice as to whether the statute is constitutionally in-firm, and, if she finds that the statute violates a constitutional provision, she then makes thechoice regarding the appropriate method of invalidation. In this scenario, modeling the first(selection) choice may affect model estimation of the second (outcome) choice by introducing se-




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lection bias; the observations included in the second model are dependent on the outcome of theinitial choice to invalidate a statute. Heckman selection models provide a method to control for se-lection bias that may arise when the process of selection at the first stage is not independent of the

outcome of interest at the second stage in that the influence of parameters in the second (outcome)stage are conditional on the observations being selected into the category of unconstitutional stat-utes. Since we have a dichotomous outcome at both stages of the decision process, the appropriatemodel in such a case is the binomial probit with selection (Baum 2006, p. 272). [FN15 ]


Figure 2. Decision tree in constitutional cases

Another alternative is that the justices make the choice regarding constitutional validity andmethod of invalidation simultaneously, perhaps *486 in an ordered fashion such that an ordinal de-

pendent variable (0 = uphold, 1 = strike as applied, and 2 = strike on face) appropriately reflectsthe hierarchical nature of the choice (Figure 3). Characterizing the dependent variable in this or-dinal fashion is also consistent with both the increasing level of confrontation with the electedbranches and the presumption against facial invalidations. If this characterization is accurate, thenordered probit or some related method, such as multinomial logit, might be appropriate to modelthe justices' voting behavior.


Figure 3. Alternative decision tree in constitutional cases

Finally, it is possible that the justices' choices regarding constitutional validity and method of invalidation are not interdependent in any theoretical or statistical sense. That is, the justices couldmake the two choices independently such that the decision of the choice of method (as applied orfacial) is made without consideration for factors associated with the decision to strike the statutein the first place. If the choice of method is not affected by selection bias because the two stagesare independent, then the decisions may be modeled using two separate logit equations. [FN16 ]

*487 We explored these various options by estimating (1) two separate logit models (onemodeling the decision to strike, the second the decision regarding method of invalidation); (2) abinomial probit model with selection (using the heckprob command in Stata 10 and two differentmodel specifications, as explained below); (3) a multinomial probit model of an unordered choicebetween a vote to uphold, strike as applied, or strike on face; and (4) an ordered probit model of

an ordinal dependent variable (0 = uphold, 1 = strike as applied, and 2 = strike on face). In Table1, we present the results of the separate logit models and of two approaches to the binomial probitmodel with selection. Model I incorporates only those variables identified as theoretically relevantat each stage of the model, with the lower court resolution of the constitutional issue serving asthe exclusion restriction (for another ex *490 ample of such a modeling strategy, see Baum 2006,p. 274). We also specify a selection model that incorporates the same variables at both stages of the equation (with the exception of the exclusion restriction); this more comprehensive specifica-tion is reported as model II in Table 1. [FN17 ] Although neither selection model produces a signi-ficant p-value (suggesting the absence of selection bias), we nevertheless present the results fromthese three specifications to demonstrate the robustness of our results using these alternative es-timation strategies.




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Table 1. Estimates of the Decision to Strike and the Method of Invalidation

Logit Model Binomial Probit Model withSelection I

Binomial Probit Model withSelection II

Variable Coefficient SE Coefficient SE Coefficient SE

Choice to strike:

Congressional Support for

Challenger

1.522 FN[FNaa1]

.594 .902 FN[FNaa1]

.352 .945 FN[FNaa1]

.375

JudicialSupport forChallenger

1.893 FN[FNaaa1]

.095 1.141 FN[FNaaa1]

.055 1.142 FN[FNaaa1]

.055

Lower CourtInvalidated Stat-ute

-.334 FN[FNaa1]

.117 -.223 FN[FNaa1]

.072 --241 FN[FNaaa1]

.071

SG Supportof Statute

-.323 .249 -.188 .149 -.180 .149

SG Support(Amicus) of Statute

-.670 FN[FNaaa1]

.178 -.398 FN[FNaaa1]

.107 -.381 FN[FNaaa1]

.111

SG Opposi-tion (Amicus) toStatute

.768 FN[FNaa1]

.325 .438 FN[FNa1]

.191 .432 FN[FNa1]

.193

AmicusSupport of Stat-ute

-.042FN

[FNaa1] .017 -.026FN

[FNaa1] .010 -.027FN

[FNaa1] .011

Amicus Op-position to Stat-ute

.064 FN[FNaa1]

.025 .038 FN[FNaa1]

.015 .040 FN[FNaa1]

.015

Age of Stat-ute

-.002 .003 -.001 .002 -.001 .002

Federal Stat- -.583 FN .243 -.347 FN .145 -.348 FN .147




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ute [FNaa1] [FNaa1] [FNaa1]

Number of ProvisionsChallenged

.078 .057 .048 .034 .046 .035

Post Salerno -.026 .081

CommerceClause

.085 .133

Free Speech .171 .099

Abortion .016 .180

Party Ar-gued Statute Fa-cially Invalid

.086 .070

Constant .175 .124 .113 .074 .053 .084

Choice to facially invalidate statute:

Congressional Support forChallenger

3.454 FN[FNaa1]

1.345 1.898 FN[FNaa1]

.699 1.873 FN[FNaa1]

.686

JudicialSupport forChallenger

.288 FN[FNa1]

.147 .538 FN[FNaa1]

.202 .608 FN[FNaaa1]

.191

SG Supportof Statute

.421 .607 .100 .299 .073 .287


.639 .421 .196 .251 .155 .248

SG Opposi-tion (Amicus) toStatute

-.088 .536 .137 .308 .166 .297

AmicusSupport of Stat-

ute

.034 .049 .011 .026 .007 .025




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procedure does not allow comparison between the choice to invalidate on the statute's face or asapplied, since the comparisons are made to the baseline category--a vote to uphold the statute.Nevertheless, for the interested reader, we report the results of the ordered probit and multinomial

logit models in Table A1. As noted, the results for these various models are largely consistentacross all specifications. We also present descriptive statistics for all independent and dependentvariables in Table A2.

4. RESULTS: THE JUSTICES AS STRATEGIC DECISION MAKERS

The results in Table 1 provide support for the SOP model of judicial review at both stages inthe analysis. To provide substantive meaning to the coefficients in the models, we estimate pre-dicted probabilities of the two voting outcomes caused by changes in the values of statisticallysignificant variables in our model; those predicted probabilities are presented in Tables 2 and 3.[FN19]

Table 2. Changes in the Predicted Probability of a Vote to Strike a Statute

Predicted Probability Change in Probability

Congressional Support for Chal-lenger (min max)

.393 .551 + .158

Judicial Support for Challenger (minmax)

.162 .811 + .649

Lower Court Declared Unconstitu-tional (yes no)

.442 .526 + .084

SG (Amicus) Supports OpposesStatute

.340 .502 +.162

Amicus Opposition to Statute (min

max)

.447 .769 +.322

Amicus Support of Statute (minmax)

.505 .183 -.322

State Statute Federal Statute .522 .379 -.143

Note. Baseline Pr(strike statute) = .483. Probabilities are calculated with all other variables held at mean values. SG= solicitor general.

Table 3. Changes in the Predicted Probability of a Vote to Strike a Statute on Its Face rather Than As Applied




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Predicted Probability Change in Probability

Congressional Support for Chal-lenger (min max)

.649 .888 + .239

Judicial Support for Challenger (minmax)

.767 .841 + .074

No Free Speech Challenge Free

Speech Claim

.790 .918 +.128

No Party Claim of Facial InvalidityParty Claim

.368 .972 +.604

Number of Provisions Challenged(min max)

.795 .998 +.203

Note. Baseline [Pr(strike on face) | (strike statute)] = .814. Probabilities are calculated with all other variables held atmean values.

4.1. The Choice to Strike

In the decision whether to strike the challenged statute, the justices appear to be significantlyinfluenced by congressional preferences. As congressional preferences for the challenger's ideolo-gical position increase, a justice is more likely to vote to invalidate the enactment. Specifically,when this congressional constraint is at its minimum (that is, where *491 Congress prefers thechallenger's position), the probability of a vote to strike is .551. However, when congressionalconstraint is at its maximum, the probability of voting to strike is .393. These results indicate thatthe justices' discretion is influenced by the degree of congressional constraint, with a decrease of .158 in the likelihood of voting to strike a statute when Congress is less favorably predisposedideologically to the constitutional challenge. In addition, the results indicate that, as expected, the justices' own preferences regarding the ideological direction of the constitutional challenge play amajor role, with justices more likely to strike a statute when their preferences are at odds with theideological direction of the constitutional challenge. Specifically, the probability of voting tostrike when the justice's support for the direction of the challenge is at its maximum is .811. Theprobability of a vote to strike dramatically decreases to .162 when the value on this variable is atits minimum.

Separation-of-powers influences are not limited to Congress, however. Acting through the so-licitor general, the president is able to influence the justices' votes when participating as amicus. If the solicitor general supports the statute as amicus, the predicted probability of striking the statute

is .340, but when the solicitor general opposes the statute as amicus, the predicted probability of




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striking the statute increases to .502.

Amicus support or opposition also influences these votes, with the number of briefs filed in

opposition or support affecting the justices' willingness to vote in favor or against the challengedlaw. We test the impact of amicus briefs by varying the value on these variables from their minim-um to their maximum. Specifically, if no amicus briefs supporting the statute are filed, the pre-dicted probability of a vote to strike is .505. If the number of briefs supporting the statute shifts to30, however, *492 the predicted probability of a vote to strike is reduced to .183. In contrast, if thenumber of briefs opposing the statute is zero, the predicted probability of a vote to strike is .447,but where 23 amicus briefs oppose the statute, the predicted probability increases to .769. Thedummy variable reflecting whether the statute was federal or state is also significant, indicatingthat the justices are less likely to vote to strike federal statutes than they are to strike state statutes,with the probability decreasing by .143 when a federal statute is challenged.

4.2. The Method of InvalidationIn evaluating the justices' votes to strike statutes on their face or as applied, judicial prefer-

ences for the challenger's ideological position also shape the choice of method of constitutionalenforcement. When the justice prefers the ideological direction of the statutory challenge, she ismore likely to find the statute facially invalid. Specifically, if the justice favors the ideologicaldirection of the challenge, the predicted probability of striking the statute on its face is .824, whileif she disfavors the ideological direction of the challenge, the predicted probability of striking thestatute on its face falls to .733. Obviously judicial preferences are much less influential in the con-text of the decision whether to strike the statute on its face rather than as applied, but neverthelessideology significantly influences the justices' choice regarding the method of enforcement--especially given that the justice has chosen to strike the statute in the first place.

Congress also appears to influence the justices' choices of the method of invalidation, and, inthis choice, the substantive impact exceeds the impact of judicial preferences. Specifically, whencongressional preferences for the constitutional challenge are at the minimum value, the *493 pre-dicted probability of a vote to strike the statute on its face is .649, compared to .888 when Con-gress favors the ideological direction of the constitutional challenge. At the same time, the vari-ables measuring the influence of the solicitor general and interest groups indicate that these arenot significant influences on the justices' choices regarding the proper method of invalidation, nordoes interest group pressure affect the justices at this second stage of the analysis.

Control variables reflecting the nature of the constitutional challenge (Free Speech) and

whether the challenging party argued that the statute was facially invalid also influence the justices' votes to strike a statute on its face or as applied. Specifically, if the challenging party ar-gued only that the statute was facially invalid, the predicted probability of a vote to strike the stat-ute on its face increases from .368 to .972. This result demonstrates the importance of a party's ar-guments to the Court and the justices' reluctance to decide cases on the basis of arguments notpresented to them (Epstein and Knight 1998, p. 162). The justices themselves have confirmed thatthe scope of the parties' arguments determines the nature of the Court's review. [FN20 ] Similarly, justices are influenced by the doctrinal context of the case. If the statute involved free speech, the justices were more likely to strike the statute on its face, with the probability of a vote to faciallyinvalidate in free-speech cases increasing to .918. On the other hand, Salerno does not affect the justices' propensity to vote to strike statutes as applied rather than on their face. Given the debateregarding Salerno, this finding is not surprising; the result could also stem from the rather crude




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Statute

Amicus Oppositionto Statute

.119 FN [FNaa1] .041 -.104 FN [FNa1] .059

Number of Provi-sions Challenged

.048 .087 .317 FN [FNa1] .179

Age of Statute -.004 .004 .008 .006

Federal Statute -.656 FN [FNa1] .357 -.249 .454

Constant .313 .175 -.650a FN [FNa1] .291

Observations 5,023 1,478

Choice to Invalidate Statute on its Face:

CongressionalSupport for Challenger

3.957 FN [FNaa1] 1.667 1.833 1.857

Judicial Supportfor Challenger

.215 .144 .514 .385

Post Salerno .107 .420 -.986 FN [FNa1] .499

Federal Statute -1.065 .788 .760 .539

SG Support of Statute

.914 .852 -.756 .527


.828 .584 .579 .518

SG Opposition(Amicus) to Statute

-.072 .588 -.684 .789

Amicus Support of Statute

-.019 .067 .138 FN [FNa1] .066


-.037 .053 -.087 .087

Commerce Clause .638 .574 -.427 .656




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Free Speech 1.257 FN [FNa1] .570 .622 .488

Abortion -.248 .662 -1.270 .899

Party Argued Stat-ute Facially Invalid

Only

4.190 FN [FNaaa1] .513 4.000 FN [FNaaa1] .608

Age of Statute -.018 .010 -.005 .012

Provisions Chal-lenged

.422 FN [FNa1] .214 .286 .235

Constant -1.183 FN [FNaa1] .380 -.885 .510

Observations 2,368 793

Note. Robust standard errors are clustered on case citation. The p-values are one tailed where directionality is hypo-thesized. SG = solicitor general.

FNa1. p < 5%.FNaa1. p < 1%.FNaaa1. p < .1%.

As we predicted, congressional preferences appear to operate most prominently on justices inthe majority. With respect to the vote to strike the challenged enactment, congressional prefer-ences for the challenged statute influence the justices in the majority but have no significant im-pact on the justices in dissent. Indeed, a justice in dissent need not concern herself with congres-sional response, since her vote will have no actual impact on legislative prerogatives. This conclu-sion is further supported by the finding that congressional preferences affect the justices in themajority when deciding both whether to strike the statute and whether to strike the statute faciallyor as applied but do not affect those in dissent. In sum, we believe that these results provide fur-ther support for our hypotheses that, when it comes to judicial review, justices are influenced bytheir decision-making environments when they are aware that their decisions may produce an ad-

verse response. Dissenters have no such concerns and thus are less affected by SOP dynamics, al-though they continue to be influenced by their own personal policy preferences.

5. CONCLUSION: SEPARATIONS OF POWERS AND A MULTISTAGE DECISIONALPROCESS

Scholars who study the Court's responsiveness to the preferences of elected officials often relyon a theoretical framework that characterizes the justices as strategic actors who are sensitive toand anticipate the *495 reactions of other governmental actors to the Court's exercise of judicialreview. Indeed, the advent of positive political theory focused attention on the institutional con-straints on the Court's exercise of its powers. In particular, SOP models of the Court's decision-

making highlight the potential for strategic action by Supreme Court justices in anticipation of po-




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tentially retaliatory action by other governmental actors, including *496 Congress and the presid-ent. Separation-of-powers models begin with the assumption that, like other political actors, Su-preme Court justices seek to embody their own policy preferences into the law. Such models also

recognize, however, that the justices' policy choices may be shaped by their expectations regard-ing the preferences and actions of other political actors in response to those choices. As a result,strategic justices may moderate their decisions to conform to the preferences of the electedbranches to insulate those decisions from some form of reversal or to insulate the judiciary itself from other adverse consequences that Congress might enact via ordinary legislation.

This paper presents the results of an SOP model of judicial review that incorporates an analys-is of the justices' choices to invalidate statutory enactments and their choices to invalidate enact-ments on their face or as applied. The results provide support for the SOP model at each stage of the decision-making process, suggesting that the justices defer to congressional preferences whendeciding substantive constitutional issues as well as when they decide the appropriate method of constitutional enforcement. First, in the choice whether to invalidate challenged enactments, theindividual justice's votes are influenced by congressional preferences concerning the constitution-al challenge raised. In addition, the justices are influenced by whether the solicitor general sup-ports or opposes the statute at issue as amicus and the number of amicus briefs filed in support oropposition to the statute. These results indicate that the justices' votes are significantly affected byforces related to the separation of powers. Even when deciding whether to invalidate a statute onits face or as applied, the justices' votes are shaped by congressional preferences regarding theideological direction of the legal challenge. [FN22 ] Although the Court's exercise of judicial re-view has the potential for countermajoritarian effects, these results also indicate that the justices'choices to invalidate state and federal laws are substantially influenced by other actors in the gov-ernmental system. Our findings are further supported by the separate models of the justices' votesin the majority and dissent. There the results show that when a justice dissents, she does not votein a manner evidencing concern for the elected *497 branches, but a justice in the majority is sub-stantially influenced by other actors.

At the same time, we recognize that further nuances in this story might be explored in futureresearch. For example, while we show that the justices are influenced by congressional prefer-ences, it is possible that they are operating within a system of regime politics such that theirpropensity to uphold or strike a statute is enhanced when their preferences are congruent withthose of sitting legislators and/or the president (Dahl 1957; Whittington 2007). Our statistical testssimply account for the preferences of actors within the coordinate branches without consideringregime effects; such an approach holds promise for future research (Segal, Westerland, andLindquist 2011). The findings that we present here do, however, comport with other research

demonstrating the influence of the sitting Congress on the justices' propensity to invalidate legis-lation. For example, Harvey and Friedman (2006) show that when a Republican majority took over Congress in 1994, the Court's propensity to invalidate legislation changed dramatically, per-haps because the conservative Court majority had then come to operate within an insulated zoneof legislative approval (see also Segal, Westerland, and Lindquist 2011). It is not clear whetherthe same dramatic effect would accompany a leadership change in a single chamber (such as theswitch to a Republican majority in the House in 2010), but it is possible that ideological changewithin a single chamber may change the ideological center in Congress sufficiently to alter the in-stitutional context within which the justices render their decisions. Our results certainly demon-strate that the justices' votes are shaped by such shifts in congressional preferences over time.

In conclusion, the results reported here lend additional support to the growing body of evid-




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ence that the Court is indeed significantly influenced by majoritarian preferences when decidingwhether and how to exercise its most powerful institutional check on the elected branches. Ourstudy presents additional evidence to undermine the Court's countermajoritarian credentials and

adds a new spin on that evidence by revealing how majoritarian pressures influence the justicesboth as to the substantive constitutional doctrine that they pursue as well as the method of consti-tutional enforcement that they employ in individual cases. It paints a portrait of justices who are,fundamentally, sophisticated strategic actors within the system of separated powers.

*498 APPENDIX

Table A1. Results of Multinomial Logit and Ordered Probit Models

Multinomial Logit Ordered Probit

Variable Coefficient SE Coefficient SE

As Applied versus Uphold:


.423 .902 .977 FN [FNaaa1] .168


1.814FN [FNaaa1]

.127 1.028FN [FNaaa1]

.037

Lower CourtStruck Statute

-.585 FN [FNaa1] .187 -.134 FN [FNaaa1] .033


-.267 .418 -.175 FN [FNaa1] .074

SG Support(Amicus)

-1.172 FN[FNaaa1]

.335 -.284 FN [FNaaa1] .055

SG Opposition(Amicus)

.963 FN [FNa1] .453 .371 FN [FNaaa1] .081


-.106 FN [FNaa1] .036 -.020 FN [FNaaa1] .006


.111 FN [FNaa1] .038 .029 FN [FNaaa1] .006

Age of Statute .006 .005 -.002 .001




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Federal Statute -.571 .422 -.309 FN [FNaaa1] .072

Post Salerno .097 .215 -.031 .037

Commerce Clause -.341 .353 .196 FN [FNaaa1] .059

Free Speech -.402 .302 .219 FN [FNaaa1] .049

Abortion .346 .627 -.013 .100

Party Argued Stat-ute Facially Invalid

Only

-2.711 FN[FNaaa1]

.347 .480 FN [FNaaa1] .032

Number of provi-sions challenged

-.105 .117 .059 FN [FNaaa1] .018

Constant -.061 .212 .205 FN [FNa] .037 FN [FNa]

.701 FN [FNb] .037 FN [FNb]

Facial versus Uphold:


2.129 FN [FNaa1] .741


1.962 FN [FNaaa1] .107

Lower Court

Struck Statute

-.248 .141


-.326 .279

SG Support(Amicus)

-.433 FN [FNa1] .198

SG Opposition(Amicus)

.714 FN [FNa1] .366




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-.031 .019


.052 .029

Age of Statute -.005 .004

Federal Statute -.555 FN [FNa1] .276

Post Salerno -.071 .158

Commerce Clause .429 FN [FNa1] .249

Free Speech .476 FN [FNa1] .189

Abortion -.072 .308

Party Argued Stat-ute Facially InvalidOnly

1.090 FN [FNaaa1] .142

Provisions Chal-lenged

.112 FN [FNa1] .060

Constant -1.062 FN[FNaaa1]

.179

Note. Robust standard errors are clustered on case citation. The p-values are one tailed where directionality is hypo-thesized. N = 6,501.

FNa1. p < 5%.FNaa1. p < 1%.FNaaa1. p < .1%.FNa. Cut 1.FNb. Cut 2.

Table A2. Summary Statistics for Independent Variables

Variable Mean SD Min Max

Congressional .032 .101 -.211 .211




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Support for Challenger


.014 .433 -.817 .817

Lower Court De-clared Statute Uncon-stitutional

.509 .500 0 1


.248 .432 0 1

SG Support

(Amicus) of Statute

.110 .313 0 1

SG Opposition(Amicus) to Statute

.039 .193 0 1


2.096 3.804 0 36


2.282 3.029 0 22

Age of Statute 15.918 19.685 1 143

Federal Statute .272 .445 0 1

Post Salerno .347 .476 0 1

Commerce Clause .087 .281 0 1

Free Speech .131 .337 0 1

Abortion .029 .168 0 1

Party Argued Stat-ute Facially Unconsti-tutional

.485 .500 0 1

Number of Stat-utory Provisions Chal-lenged

1.344 1.057 1 15

Note. SG = solicitor general.




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[FNa1] . STEFANIE A. LINDQUIST is the A. W. Walker Centennial Chair in Law at the Uni-versity of Texas Law School. PAMELA C. CORLEY is an Assistant Professor at Southern Meth-odist University's Department of Political Science. The authors would like to thank WilliamBlake, Tyler Bexley, Jenna Lukasik, and Jennifer Selin for their research assistance and Sean Far-hang and Chris Zorn for their helpful comments and suggestions.

[FN1] . See Friedman (2005, p. 316): At the heart of all hope stories about judicial review is the

notion that courts can--and will--stand up against the other branches of government in the protec-tion of constitutional safeguards.

[FN2] . As Berman (2004) indicates, implementation of constitutional meaning often requires de-velopment of certain constitutional decision rules that direct courts as to the method to adjudicateclaimed violations of the Constitution.

[FN3] . Justices have other options available to minimize the impact of their rulings or refrain fromruling altogether. Justiciability standards, as well as the doctrine of constitutional avoidance, al-low the justices to forgo ruling on the constitutional issue altogether. In this paper, we address oneminimizing technique involving the method of constitutional avoidance and leave these other al-ternatives to future research.

[FN4] . As-applied invalidations are available only in the presence of severability, such that un-constitutional applications or provisions can be severed from the statute. See Ayotte v. Planned Parenthood of Northern New England (546 U.S. 320, 329 [2006]) : [W]e prefer to enjoin only theunconstitutional applications ... or sever its problematic proportions.

[FN5] . Under the current Court's formulation at least, as-applied challenges need not be limitedexclusively to the plaintiff's unique circumstances but might extend to certain classes of con-texts (see Metzger 2009, p. 13). So, for example, in Crawford v. Marion County Election Board (128 S. Ct. 1610 [2008] ), Justice Stevens indicated that the challenged election law was valid onits face but might be subject to an as-applied challenge from a class of voters who were burdenedby the statute. In other words, as Metzger (2009, p. 13) notes, the as-applied challenge need not


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proceed on a voter-by-voter basis.

[FN6] . As Dorf (1994, p. 878) notes, [I]n practice the Court accepts facial challenges far more

frequently than its stated doctrine suggests. Nelson (2008, pp. 1877-78) argues that one reasonfor the mismatch between rhetoric and reality in this area might be related to the rise of the pur-pose doctrine in constitutional law; to the extent that a statute is invalidated because it was en-acted with an improper purpose, no conceivably constitutional application can save the statute un-der Salerno .

[FN7] . To do so, we first identified all cases in the U.S. Supreme Court Database in which thevariable uncon was coded 1, 2, or 3, indicating that the majority had invalidated a federal, state,or local law (ordinance), respectively. Because the Supreme Court Database does not identifycases in which the Court considers a statute's constitutionality but upholds the law, we relied onthe auth_dec variables, as well as the Justice-Centered Supreme Court Databases, to identify theseadditional cases. The Justice-Centered Supreme Court Databases are organized with the individual justices as the unit of analysis, but these databases are available only up to 2000 and do not clearlyidentify cases in which a statute was challenged but upheld unanimously.

[FN8] . Often, this is a relatively straightforward enterprise. However, occasionally the justices arenot clear which method they are using to invalidate a statute. Thus, we applied the following cod-ing convention: when t