Saying What the Law Is:
Measuring Judicial Review
J. Mitchell Pickerill and Artemus Ward
Department of Political Science
Northern Illinois University
DeKalb, IL
USA
Paper prepared for the Annual Meeting of the American Political Science
Association, New Orleans, LA, August 30-September 2, 2012
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.”
Citizens United v. Federal Election
Commission (2010)
• 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, asapplied 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.
Citizens United v. Federal Election
Commission (2010)
• Ultimately, Kennedy’s opinion became the law of
the land and transformed Citizens United from
what would have been a relatively minor asapplied, 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-freespeech 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 judicial minimalism or
narrow rulings as deferential to legislative
majorities (e.g. Bickel 1961; Sunstein 1999).
• 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.
2.
3.
4.
5.
Uphold Broadly
Uphold Narrowly
Strike Down As Applied
Strike Down On Face Narrowly
Strike Down On Face Broadly
Table 1. Typology of Judicial Review
Uphold
Broadly
Uphold
Narrowly
Strike Down
As Applied
Strike Down
Strike Down
On Face
On Face
Narrowly
Broadly
• Uphold in • Uphold
• Strike down • Specific
• Strike down
with
provisions
on face
entirety
as applied
• No
limitations • Strike down
severed
broadly
limitations
on decision
based on
and struck
because
on decision
or state
policy area
facts
down
or state
• Strike down
is not
action
• Uphold as
on face but
within the
action
with
power of
applied
direction
state actor
for
alternatives
to achieve
policy ends
CODING AND MEASURING JUDICIAL REVIEW:
ILLUSTRATIVE CASES
• We trained two student research assistants and had
them code the decision to fit into one of the five
categories using the definitions in the previous section
as the decision-rules.
• We began with cases we were familiar with and that we
thought exemplified the categories based on our own
reading.
• The research assistants independently coded each of the
following cases in the categories we had predetermined,
indicating that the stated decision-rules were reasonably
clear and could be implemented.
Table 2. Variation in Upholding Behavior: Illustrative Cases
Uphold Broadly
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 Narrowly
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. Variation in Striking Behavior: Illustrative Cases
Strike Down As Applied
-- “Because the Commission failed to give Fox or ABC fair notice prior to the
FCC v. Fox
broadcasts in question that fleeting expletives and momentary nudity could be
Television
Stations (2012) found actionably indecent, the Commission’s standards as applied to these
broadcasts were vague”
-- “It then applied this new principle to these cases. Its lack of notice to Fox and
ABC of its changed interpretation failed to give them ‘fair notice of what is
prohibited.’”
Strike Down On Face Narrowly
Pepper v. U.S.
(2011)
-- “Because ‘departures are not available in every case, and in fact are unavailable
in most,’ [citation omitted] we held that remedying the Sixth Amendment
problem required invalidation of § 3553(b)(1). That same remedial approach
requires us to invalidate § 3742(g)(2).”
-- “District courts post-Booker may consider evidence of a defendant’s
postsentencing rehabilitation at resentencing and such evidence may, in
appropriate cases, support a downward variance from the advisory Guidelines
range.”
Strike Down On Face Broadly
Citizens United -- “If the First Amendment has any force, it prohibits Congress from fining or
v. FCC (2010) jailing citizens, or associations of citizens, for simply engaging in political speech.”
-- “This case cannot be resolved on a narrower ground without chilling political
speech, speech that is central to the First Amendment's meaning and purpose.”
CODING AND MEASURING JUDICIAL REVIEW:
The Roberts Court (2005-2011)
• We used the Supreme Court database to identify all the
decisions of the Roberts Court (2005-2011 terms) involving
the constitutionality of federal legislation.
• Consistent with the United States Supreme Court database,
we coded for the case outcome and the individual votes of
each justice.
• The research assistants were instructed to extract and
record language from opinion(s) in the decision that
justified their coding decision(s).
• For the 2011-2012 term we read the syllabus for every case
decided by the Court and identified those in which the
Court decided the constitutionality of federal legislation.
Table 4. Frequencies of Judicial Review
Outcomes, Roberts Court (2005-2011)
Judicial Review Outcome
Uphold Broad
Frequency
2
Percent
7.1%
Uphold Narrow
11
39.3%
Strike As Applied
8
28.6%
Strike Narrow
4
14.3%
Strike Broad
3
10.7%
Total
28
100%
Table 5. Justices’ Votes and Judicial Review Outcomes
Justice
Uphold
Broad
Uphold
Narrow
Strike As
Applied
Strike
Narrow
Strike
Broad
Total
Sotomayor
5 (29.4%)
6 (35.3%)
4 (23.5%)
1 (5.9%)
1 (5.9%)
17 (100%)
Kagan
1 (11.1%)
3 (33.3%)
4 (44.4%)
1 (11.1%)
0 (0.0%)
9 (100%)
Ginsburg
5 (18.5%) 11 (40.7%) 6 (22.2%)
3 (11.1%)
2 (7.4%)
27 (100%)
Breyer
3 (10.7%) 12 (42.9%) 9 (32.1%)
2 (7.1%)
2 (7.1%)
28 (100%)
Kennedy
2 (7.1%)
9 (32.1%)
6 (21.4%)
6 (21.4%)
5 (17.9%)
28 (100%)
Souter
0 (0.0%)
5 (50.0%)
2 (20.0%)
2 (20.0%)
1 (10.0%)
10 (100%)
Stevens
2 (11.8%) 10 (58.8%) 2 (11.8%)
1 (5.9%)
2 (11.8%)
17 (100%)
Thomas
3 (10.7%)
8 (28.6%)
5 (17.9%)
5 (17.9%)
7 (25.0%)
28 (100%)
Roberts
2 (7.1%)
11 (39.3%) 8 (28.6%)
4 (14.3%)
3 (10.7%)
28 (100%)
Alito
0 (0.0%)
13 (52.0%) 3 (12.0%)
6 (24.0%)
3 (12.0%)
25 (100%)
Scalia
2 (7.1%)
10 (35.7%) 4 (14.3%)
6 (21.4%)
6 (21.4%)
28 (100%)
Table 6. Judicial Minimalists: Justices Most Likely to Rule Narrowly,
Roberts Court (2005-2011)
Justice
Souter
Kagan
Roberts
Breyer
Stevens
Alito
Kennedy
Ginsburg
Scalia
Sotomayor
Thomas
Number of Narrow Decisions Percentage of Narrow Decisions
9
8
23
23
13
22
21
20
20
11
18
90.0
88.9
82.1
82.1
76.4
76.0
75.0
74.0
71.4
64.7
64.3
Table 7. Judicial Review Outcomes and Consensus on the
Roberts Court, 2005-2011.
Judicial Review Outcome
# Dissents
0
Uphold
Broad
0
(0%)
Uphold Strike As Strike
Narrow Applied Narrow
4
3
0
(57.1%) (42.9%)
(0%)
Strike
Broad
0
(0%)
Total
7
1
0
(0%)
1
(25.0%)
2
(50.0%)
0
(0%)
1
(25.0%)
4
2
2
(40.0%)
2
(40.0%)
0
(0%)
1
(20%)
0
(0%)
5
3
0
(0%)
0
(0%)
1
(100%)
0
(0%)
0
(0%)
1
4
0
(0%)
4
(36.4%)
2
(18.2%)
3
(27.3%)
2
(18.2%)
11
Total
2
(7.1%)
11
(39.3%)
8
(28.6%)
4
(14.3%)
3
(10.7%)
28
(100%)
Conclusion: Implications
• Judicial review is a more complex concept than is
captured by a dichotomous variable.
• The Roberts Court rules narrowly far more often
than it rules broadly.
• Ideologically moderate justices rule more narrowly
than do their ideologically extreme colleagues.
• The Roberts Court has only been able to achieve
unanimity by ruling narrowly.
• Future research can explore:
– 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.