KEEP ON KEEPIN ON? RETHINKING THE CONCEPTUALIZATION AND OPERATIONALIZATION OF JUDICIAL REVIEW J. Mitchell Pickerill and Artemus Ward Department of Political

KEEP ON KEEPIN ON? RETHINKING THE CONCEPTUALIZATION AND OPERATIONALIZATION OF JUDICIAL REVIEW

J. Mitchell Pickerill and Artemus WardDepartment of Political Science

Northern Illinois UniversityDeKalb, IL

USA

Paper prepared for the Annual Meeting of the Law & Society Association, June 2012, Honolulu, Hawaii.

Citizens United v. Federal Election Commission (2010)

• The U.S. Supreme Court issued a broad decision striking down sections of the McCain-Feingold campaign-finance law.

• Writing for a five-justice majority, Justice Anthony Kennedy ruled that the statute’s prohibition on political advertising in the run-up to elections by corporations and unions was an unconstitutional restriction of political speech.

• Using broad language, Kennedy wrote: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”


• Yet at their initial conference vote on the case the same five-justice majority voted far more narrowly.

• Instead of declaring the campaign limits unconstitutional, the majority said that the law did not apply to the specific communication in question—in this case a feature-length documentary about Hillary Clinton that was to be shown on cable and satellite television.

• Chief Justice John Roberts assigned the majority opinion to himself, drafted it, and circulated it to his colleagues.

• Justice Kennedy was not satisfied with Roberts’ narrow, as-applied analysis and Kennedy circulated his own concurrence.

• He explained that the Court should have issued a broader ruling, not only declaring McCain-Feingold’s restrictions unconstitutional but also questioning and even overturning prior Supreme Court decisions that allowed restrictions on corporate giving.

• Kennedy’s broad concurrence gained adherents and Roberts withdrew his opinion and supported Kennedy’s as the opinion of the Court.


• Ultimately, Kennedy’s opinion became the law of the land and transformed Citizens United from what would have been a relatively minor as-applied, statutory campaign finance decision into a landmark First Amendment case that opened the door for greater involvement from corporations in political elections.

• To be sure there is a world of difference between Roberts’ as-applied opinion and Kennedy’s constitutional one.

• Yet in both scenarios Citizens United won the case and a Supreme Court majority supported the free-speech position over government restrictions.

• But classifying each decision as simply pro-free-speech misses important distinctions between relatively narrow statutory rulings and broad constitutional pronouncements.

Conceptualizing Judicial Review

• In almost all studies of judicial decision making, judicial review has been conceptualized as a dichotomous—uphold or strike down—choice.

• The Supreme Court Database allows researchers to use this measure (combining “uncon” and “auth_dec” variables).

• Scholars have used it to find that ideology influences the decision to strike or uphold (Segal and Spaeth 2002; Sala and Spriggs 2004; Keck 2007).

• We suggest that the dichotomous coding scheme has resulted in a situation where legal and institutional factors have been deemphasized in favor of ideology.

As-Applied v. On Face• Despite the preoccupation with dichotomizing

judicial review, some scholars have discussed a more sophisticated conceptualization—namely a distinction between striking down legislation on its face or as applied.

• Normative theorists have extolled the “passive virtues” of narrow rulings as deferential to legislative majorities (e.g. Bickel 1961).

• Empirical work has found:– the justices first decide to strike or uphold and

then decide whether to do so as applied or on face (Lindquist and Corley 2011);

– Congress is more likely to amend legislation when the Court strikes down on face (Pickerill 2004).

Operationalizing Judicial Review• We propose a new way to operationalize

judicial review. • Our nuanced measure considers both narrow

and broad variants of upholding or striking behavior.

• We identify five distinct categories: 1. Uphold Broadly2. Uphold Narrowly3. Strike Down As Applied4. Strike Down On Face Narrowly5. Strike Down On Face Broadly

Table 1. Typology of Judicial ReviewUphold Broadly

Uphold Narrowly

Strike Down As Applied

Strike Down On Face

Narrowly

Strike Down On Face Broadly

• Uphold in entirety

• No limitations on decision or state action

• Uphold with limitations on decision or state action

• Uphold as applied

• Strike down as applied

• Strike down based on facts

• Specific provisions severed and struck down

• Strike down on face but with direction for alternatives to achieve policy ends

• Strike down on face broadly because policy area is not within the power of state actor

CODING AND MEASURING JUDICIAL REVIEW: ILLUSTRATIVE CASES

• We coded 10 Supreme Court decisions that illustrate our judicial review typology.

• While we are primarily concerned with majority opinions, we also coded the separate opinions in each case and the voting behavior of each justice who participated.

Table 2. Variation in Upholding Behavior: Illustrative CasesUphold BroadlyGonzales v. Raich (2005) • "Well-settled law controls our answer."

• "Our case law firmly establishes Congress' power..."• "We have no difficulty concluding that Congress had a rational

basis..."• "The congressional judgment...is entitled to a strong presumption of

validity."

U.S. v. Comstock (2010) • "The Constitution ‘addresse[s]’ the ‘choice of means’ ‘primarily … to the judgment of Congress. '"

• "[The law] is a modest addition to a longstanding federal statutory framework."

Uphold NarrowlyGeneral Dynamics v. U.S. (2011)

• "The proper remedy is to leave the parties where they were on the day they filed suit.”

• “Neither side will be entirely happy with the resolution we reach today."

• "We believe...that the impact of our ruling on these particular cases is probably much more significant than its impact in future cases."

Milavetz, Gallop & Milavetz v. U.S. (2010)

• "After reviewing these competing claims, we are persuaded that a narrower reading of [the statute] is sounder, although we do not adopt precisely the view the Government advocates."

Table 3. Individual Justice Votes: Gonzales v. Raich (2005)

Justice Uphold Broadly

Uphold Narrowly

Strike Down as Applied

Strike Down On Face

Narrowly


Stevens XSouter X

Ginsburg XBreyer X

Kennedy XO’Connor XRehnquist X

Scalia XThomas X

Table 4. Individual Justice Votes: Comstock v. U.S. (2010)


Uphold Narrowly


Strike Down On Face

Narrowly


Stevens XGinsburg X

Breyer XSotomayor XKennedy XRoberts X

Alito XScalia X

Thomas X

Table 5. Individual Justice Votes: General Dynamics v. U.S. (2011)


Uphold Narrowly


Strike Down On Face

Narrowly


Ginsburg XBreyer X

Sotomayor XKagan X

Kennedy XRoberts X

Alito XScalia X

Thomas X

Table 6. Individual Justice Votes: Milavetz, Gallop & Milalvetz v. U.S. (2010)


Uphold Narrowly


Strike Down On Face

Narrowly


Stevens XGinsburg X

Breyer XSotomayor XKennedy XRoberts X

Alito XScalia X

Thomas X

Table 7. Variation in Striking Behavior: Illustrative CasesStrike Down As Applied

Marshall v. Barlow's (1978)

• “We conclude that the concerns expressed by the Secretary do not suffice to justify warrantless inspections under OSHA or vitiate the general constitutional requirement that for a search to be reasonable a warrant must be obtained.”

• "In these circumstances, it was surely not unreasonable for the Secretary to adopt an orderly procedure..."

Turner v. U.S. (1970) • “The presumption under [the statute] will not support petitioner's conviction...”

Strike Down On Face Narrowly Califano v. Goldfarb (1976)

• "We accept as settled the proposition... that Congress has wide latitude to create classifications…"

• "The differential treatment…results not…from a deliberate congressional intention…”• The only conceivable justification for… the…statute is… ‘archaic and overbroad’

generalizations, that it would save the Government time, money, and effort…. We… hold…that such assumptions do not suffice to justify a gender-based discrimination.”

Schneider v. Rusk (1964)

• “This statute proceeds on the impermissible assumption.... This is an assumption that is impossible for us to make…”

Strike Down On Face BroadlyCity of Boerne v. Flores (1995)

• “Congress does not enforce a constitutional right by changing what the right is. It has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation."

U.S. Eichman (1990) • “The Act…suffers from [a]…fundamental flaw: it suppresses expression out of concern for its likely communicative impact…. Its restriction on expression cannot be ‘justified without reference to the content of the regulated speech.’ The Act therefore must be subjected to ‘the most exacting scrutiny,’…and…the Government’s interest cannot justify its infringement on First Amendment rights."

Table 8. Individual Justice Votes: Marshall v. Barlow’s (1978)


Uphold Narrowly


Strike Down On Face

Narrowly


BrennanMarshall X

Blackmun XStevens XPowell X

Stewart XWhite XBurger X

Rehnquist X

Table 9. Individual Justice Votes: Turner v. United States (1970)


Uphold Narrowly


Strike Down On Face

Narrowly


Douglas XBlack X

BrennanMarshall XStewart XWhite XHarlan XBurger X

Table 10. Individual Justice Votes: Califano v. Goldfarb (1976)


Uphold Narrowly


Strike Down On Face

Narrowly


Brennan XMarshall X

Blackmun XStevens XPowell X

Stewart XWhite XBurger X

Rehnquist X

Table 11. Individual Justice Votes: Schneider v. Rusk (1964)


Uphold Narrowly


Strike Down On Face

Narrowly


Douglas XGoldberg XWarren X

Black XWhite X

Stewart XHarlan XClark X

Table 12. Individual Justice Votes: City of Boerne v. Flores (1997)


Uphold Narrowly


Strike Down On Face

Narrowly


Stevens XSouter X

Ginsburg XBreyer X

Kennedy XO’Connor XRehnquist X

Scalia XThomas X

Table 13. Individual Justice Votes: U.S. v. Eichman (1990)


Uphold Narrowly


Strike Down On Face

Narrowly


Brennan XMarshall X

Blackmun XStevens XKennedy XO’Connor X

White XScalia X

Rehnquist X

Conclusion: Implications• As the above examples illustrate, judicial review

is a more complex concept than is captured by a dichotomous variable.

• Future research can explore:– whether ideologically moderate justices uphold or

strike down narrowly or as applied; and whether ideologically extreme justices uphold or strike down broadly;

– whether there is a relationship between the political regime and the type of decision (extreme v. narrow);

– whether congressional responses are dependent on the type of decision.

Documents

KEEP ON KEEPIN ON? RETHINKING THE CONCEPTUALIZATION AND OPERATIONALIZATION OF JUDICIAL REVIEW J. Mitchell Pickerill and Artemus Ward Department of Political