THE U.S. SUPREME COURT AND THE JUDICIAL REVIEW OF CONGRESS: TWO HUNDRED YEARS IN THE EXERCISE OF THE COURT’S MOST POTENT POWER
by Linda Camp Keith. New York: Peter Lang Publishing Group, 2008. 199pp. Paper. $32.95/€21.20/£15.90. ISBN: 9780820488806.
Reviewed by Joseph L. Smith, Department of Political Science, The University of Alabama. Email: josmith [at] bama.ua.edu.
Linda Camp Keith’s book presents a very comprehensive review of the behavior of the U.S. Supreme Court as a whole and of individual justices in cases involving judicial review of Congress. All of the analysis focuses on cases challenging federal laws as exceeding the powers of Congress. As Keith notes, this is Court’s most high-profile and controversial jurisdiction. It is in these cases that the Court fulfills (or does not) its putative role as a controller of majority rule and defender of minorities and civil liberties. The research presented here builds upon and updates the work of Dahl (1958), Funston (1975), and Casper (1976).
This book would fit well in a graduate or upper-level undergraduate course on the Supreme Court. It features a comprehensive description of previous relevant research and coverage of the Court’s history in this important domain.
Among the main conclusions of the book, Keith reports that the Court as a whole has been very deferential toward Congress, finding a challenged law unconstitutional in less than 17% of cases raising this issue. Moreover, cases challenging federal statututes have become more frequent over time, as have Court decisions nullifying laws as unconstitutional.
Moving to the individual justices as units of analysis, Keith finds that, like the Court as a whole, justices vote to support Congress most of the time. Over the Court’s history justices have supported federal laws about 77 percent of the time. However, there is a great deal of variation around this mean level of support. Justices appointed since about 1953 are much less deferential as a group than justices appointed earlier. Among recent justices, deference rates of less than 60 percent are common.
In terms of ideological voting, most justices exhibit relatively even-handed records in cases evaluating federal laws, and ideology appears to play a smaller role in the cases challenging federal laws than in other categories of cases. However, the ideological element in justices’ voting records in these cases has increased since the 1930s.
In examining whether the Court acts as a protector of civil rights and liberties, Keith finds a significant uptick in such protection after CAROLENE PRODUCTS in 1938. However, overall the evidence supports Dahl’s (1958) description of the Court as a legitimator of majoritarian policies rather than Casper’s (1976) description of the Court as a counter-majoritarian protector of civil rights and liberties.
In comparing the influences of attitudinal and strategic factors on the justices’ votes, Keith concludes that variables associated with the attitudinal model outperform variables associated with the strategic model. However, the particular variables Keith uses in the analysis, and the way she links those variables to the theoretical models, can be questioned. For example, For example, Keith regards the fact that justices’ religions, childhood upbringing and social status, and their careers before coming to the Supreme Court all show statistically significant influence on their voting behavior, thus supporting the attitudinal model. It is plausible that these social factors do engender some sorts of psychological structures in the justices, but these are not the sorts of attitudes that are most closely associated with the “attitudinal model” as explicated by Segal and Spaeth (1993; 2002). In general, one shortcoming of the book is that it does not adequately discuss how the independent variables in the regression models fit into the theoretical concepts being tested. The book’s comparison of the attitudinal and strategic models is very comprehensive in terms of the variables it considers, but the implications of the variables could be explained more thoroughly.
The book is more empirical than theoretical. For example, in the last substantive chapter Keith evaluates the influence of attitudinal and strategic factors, respectively, on the voting behavior of the justices. The hypotheses associated with the strategic model are all derived solely from previous empirical results, with no attempt to evaluate the theoretical plausibility of those results.
With that being said, one area in which Keith should be commended for discussing theoretical issues is in regard to the coding of federalism cases. As she notes, it is often not obvious how cases testing the authority of states should be coded. She discusses the history of the ideology of federalism, and presents two versions of the empirical results associated with federalism cases.
Casper, Jonathan D. 1976. “The Supreme Court and National Policy Making.” 70 The AMERICAN POLITICAL SCIENCE REVIEW 50-63
Dahl, Robert. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” 6 JOURNAL OF PUBLIC LAW 279-295.
Funston, Richard. 1975. “The Supreme Court and Critical Elections.” 69 AMERICAN POLITICAL SCIENCE REVIEW 795-811.
Segal, Jeffrey A. and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. Cambridge: Cambridge University Press.
Segal, Jeffrey A. and Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. Cambridge: Cambridge University Press.
UNITED STATES v. CAROLENE PRODUCTS COMPANY, 304 U.S. 144 (1938).
© Copyright 2009 by the author, Joseph L. Smith.
Labels: Vol. 19 No. 8