Paper On Judicial Review PDF

Westlaw Delivery Summary Report for IJA, Your Search: Date/Time of Request: Client Identifier: Database: Citation Text:
Lines: Documents: Images: ti("facial") Monday, July 22, 2013 02:11 Singapore IJAUSER LAWREV-PRO 40 JLEGST 467 1779 1 0
The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates.
40 JLEGST 467 40 J. Legal Stud. 467
Page 1
Journal of Legal Studies June, 2011 *467 THE MULTIPLE-STAGE PROCESS OF JUDICIAL REVIEW: FACIAL AND ASAPPLIED CONSTITUTIONAL CHALLENGES TO LEGISLATION BEFORE THE U.S. SUPREME 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 to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate 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 justices are responsive to congressional preferences concerning the substance of the legal challenge at both 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, the president (through the solicitor general), and interest groups' amicus filings. These findings suggest that the Court's exercise of judicial review is significantly influenced by Congress and by other 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 their power to determine the constitutionality of federal and state legislation. Many view this power as essential to our system of separated powers because it enables the justices to ensure that the *468 elected branches and the states remain faithful to their constitutional limitations. [FN1] At the same time, however, the justices' own insulation from electoral accountability creates the potential for judicial review to produce countermajoritarian results, a prospect that has long centered as a point 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 state or federal level), the result arguably conflicts with fundamental principles of democratic selfgovernance. Nevertheless, for the countermajoritarian difficulty to have any normative bite, the Court's actions must actually be countermajoritarian (Friedman 1993). Otherwise, there is no dilemma: 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 objectives of the democratic majority. Since the time of Dahl's (1957) seminal piece analyzing the Court's exercise of judicial review, political scientists have developed a substantial body of literature questioning the Court's countermajoritarian credentials. First, scholars have presented findings to suggest that the Court is rarely out of step with the public mood when it evaluates the constitutionality of governmental ac-
2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
tion (for example, Mishler and Sheehan 1993; Marshall 1989; Friedman 2009). Second, research has 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 Friedman 2006; but see Sala and Spriggs 2004). These studies confirm the notion that the Court's position as one of three separate branches sharing power may substantially constrain its decision-making discretion. They also suggest that the Court may act strategically in the context of judicial review by anticipating 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 judicial review: [G]iven the institutional constraints imposed on the Court, the justices cannot effectuate their own policy and institutional goals without taking account of the goals and likely actions 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 resolution 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 elected officials. Yet the justices' opportunities to act strategically when exercising the power of judicial review are not limited solely to the decision to invalidate or uphold a challenged statute. Instead, the decision 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 invalidate legislation on constitutional grounds, it often has the choice to invalidate the statute on its face, whereby the Court finds that it must be invalidated as to all possible applications and is thus rendered null and void. Alternatively, the Court may invalidate the statute only as applied to the plaintiff's particular circumstances, in which case the statute remains valid for other applications that do not raise similar constitutional concerns. This second stage of the constitutional analysis has received considerable attention from law professors (Fallon 2000; Dorf 1994; Isserles 1998; Gans 2005). Political scientists have failed to consider the importance of this critical element of the constitutional decision tree, however, perhaps because it requires consideration of case outcomes beyond a simple dichotomous measure reflecting which party prevailed on appeal. This oversight is understandable, but it has resulted in an impoverished understanding of the strategic nuances associated with judicial review. No doubt the choice to invalidate clearly implicates the possibility of counteraction by the legislature and executive. But once that choice is made, the Court has an additional opportunity to moderate the impact of a judicial invalidation by striking the statute as applied rather than on its face. This option to strike a statute solely as applied to the individual litigants (or a particular class of persons affected by the statute) arguably allows the Court to mitigate the effect of its constitutional rulings by limiting their impact. In contrast, facial invalidations constitute a much more pronounced institutional challenge to other governmental actors because they result in complete nullification of the challenged law. In this paper, therefore, we evaluate the justices' choices to invalidate a state or federal enactment on its face or as applied throughout the Burger and Rehnquist Courts. We begin by modeling the justices' votes to uphold or invalidate federal or state laws. We then take the analysis *470 one step 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
Page 3
or as applied. We do so through a theoretical lens that assumes that the justices are strategic actors who consider the consequences of their actions vis--vis other critical actors in the system of separated 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 constitutional challenges before them. Because Congress cannot act alone in responding to the Court or may be sensitive to interest group pressure, we also take into consideration the preferences of the president (as manifested through the position of the solicitor general) and interest group pressure via amicus filings. We find that, with respect to the decision whether to strike legislation, the justices' choices are dependent on congressional preferences regarding the ideological direction of the parties' challenge to the enactment under review. In addition, we find that the justices' choice to strike a statute 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 a statute on its face or as applied, the justices' choices are also dependent on congressional preferences concerning the nature of the constitutional challenge; justices are more likely to strike statutes on their face when the ideological direction of the constitutional challenge is consistent with the preferences held by members of the sitting Congress. These findings suggest that judicial review of legislative enactments is substantially shaped by dynamics associated with the separation of powers (SOP), both in the decision whether to invalidate an enactment and in the decision regarding the method of that invalidation. It also supports the prevailing wisdom that concerns about the Court's countermajoritarian results are minimized by the influence of the elected branches 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 until the twentieth century, federal courts have enjoyed the power to invalidate legislation enacted by the federal and state governments at least since the time of Marbury v. Madison (5 U.S. [1 Cranch] 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 the Fourteenth Amendment, the distinction between content-based and content-neutral restrictions under the First Amendment, or the expectation-of-privacy test under the Fourth Amendment. These doctrinal 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 must translate the Constitution's lofty values into effective rules (Gans 2005, p. 1333; see also Berman 2004). In doing so, however, the Court must consider not only the substantive standards it will employ to evaluate legislative action under the Constitution but also the method of enforcement it will use to invalidate unconstitutional laws. The Court essentially has two options. It can take a more 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 minimalist approach that would encourage case-by-case adjudication of individual applications by invalidating a statute's provisions only as applied to the plaintiff (or specific class of persons, including the plaintiff) and her unique circumstances (see Sunstein 1999). Facial invalidation min-
Page 4
imizes the chilling effect of laws by essentially recognizing that statutes have impact beyond the litigant before the Court; it may also be seen as a loosening of justiciability requirements, to the extent 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 legislations by invalidating the offending statute in toto. [FN3] On the other hand, the as-applied approach maximizes legislative prerogatives and ensures that courts decide cases on the basis of concrete *472 facts presented in live disputes. [FN4] But because they focus on and are limited in their application to particular factual scenarios, asapplied invalidations have an important practical implication: they require citizens to bring potentially multiple as-applied challenges to vindicate constitutional rights. [FN5] Perhaps most important for our analysis, as-applied invalidations leave the challenged statute on the books for future application in circumstances that do not raise constitutional concerns. In that sense, an as-applied invalidation 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 interest of late (see Gans 2005; Fallon 2000; Dorf 1994; Adler and Dorf 2000). In part, this interest was promoted by a 1986 Supreme Court ruling setting forth a doctrinal standard regarding when facial invalidation is appropriate. In United States v. Salerno (481 U.S. 739 [1986]), the Court laid down a standard that strongly favored as-applied challenges and invalidations, emphasizing that a litigant bringing a facial challenge to a legislative enactment bears a heavy burden to prove that the challenged law cannot be constitutionally applied in any set of circumstances. According to Chief Justice William Rehnquist, author of the majority opinion, [T]he challenger must establish that 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 individual litigants in the case, since doing so preserves institutional values associated with judicial restraint, eliminates concerns over third-party standing implicated by consideration of statutory applications beyond the plaintiff's individual circumstances, and limits the potential that the Court's ruling constitutes an advisory decision regarding cases yet to be presented and argued before the Court. *473 Salerno has hardly provided the last word, however, as even Supreme Court justices continue to debate the appropriateness of facial invalidations in the pages of the United States Reports. These debates have been most prominent between Justice Antonin Scalia, who protests that facial 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 to say that the Justices of the Supreme Court are not only divided, but also conflicted or even confused, about when statutes should be subject to facial invalidation. Other commentators similarly lament the lack of coherence in the Court's approach to the method of invalidation, with one remarking, 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 exacerbated by certain exceptions to the general preference for as-applied challenges, depending on the legal basis for the suit. Specifically, there are certain categories of cases in which the Court decided to strike the statute facially rather than as applied (see Gans 2005; Franklin 2006, 2009). In the context of First Amendment challenges in particular, the Court has determined that facial invalidations 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
Page 5
keep it on the books and chill speech (Franklin 2009, p. 11). Thus, the Court has formulated the doctrine of overbreadth that constitutes an exception to its general proscription against third-party standing (Monaghan 1981). Furthermore, in Sabri v. United States [541 U.S. 600 (2004), the Court listed other areas in which facial overbreadth challenges have been recognized, including the area of abortion rights. Moreover, the Court has struck down laws involving the commerce clause on their face without even considering if they would be unconstitutional in all circumstances (see Persily and Rosenberg 2009; Stewart 2004). Thus, even in light of Salerno's apparently rigorous standard for facial invalidation, the Court nevertheless continues to strike statutes on their face quite frequently. Indeed, scholars have recognized that the Court invalidates statutes on their face far more frequently than the doctrinal standards would suggest (Metzger 2005; Dorf 1994), reflecting, as they observe, a mismatch between the justices' rhetoric about the presumption *474 in favor of as-applied challenges and the 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 behavior? One explanation for the Court's lack of clarity concerning these methods of invalidation may involve the justices' efforts to build consensus behind the Court's decisions, with disagreement over basic substantive law principles causing justices to play ... loose with these second-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 undercut 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 Reform 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 McConnell v. FEC [540 U.S. 93 (2003)] had upheld the same provision when challenged on its face. The distinction between as-applied and facial challenges may thus serve the justices' strategic objectives vis--vis coalition formation or precedent avoidance (see Metzger 2009, pp. 23-24). As Metzger (2009, p. 24) observes, That the facial/as-applied distinction is employed to such strategic ends is nothing new. A third explanation for the apparent confusion and conflict among the justices regarding the appropriate method of constitutional challenge and invalidation has to do with the justices' personal 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 underlying substantive constitutional law and the justices' preferences for certain results. She notes, for example, 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 apparent orientation toward results in alternative contexts. For example, in the abortion and gay rights contexts, Justice Scalia resists facial challenges ... while Justice Stevens happily finds statutes unconstitutional on their face (Hartnett 2006, p. 1751). In contrast, in cases brought challenging Congressional authority under section 5 of the Fourteenth Amendment, Justice Antonin Scalia is receptive to facial challenges, while Justice Stevens prefers as-applied invalidations (Hartnett 2006, pp. 1751-52). Essentially recognizing that the justices' personal policy preferences influence these decisions (see Segal and Spaeth 1993), legal scholars observe that individual Justices often appear to switch between defending, distinguishing, and outright ignoring the preference [between
Page 6
facial and as-applied invalidations] when it suits their purposes (Kreit, 2010, p. 9; see also Metzger 2009). These observations suggest that the justices' choices regarding the appropriate method of invalidation are driven, at least in part, by considerations that appear inconsistent with Salerno's blanket doctrinal presumption in favor of as-applied invalidation, including the justices' preferences 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 a statute 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 enforced in different circumstances (Metzger 2005). The former method of invalidation thus has far greater institutional implications simply because it eradicates the statutory provision in its entirety, 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 constitutional 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 that the justices are influenced by, and strategically respond to, potential reactions to Court decisions by 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 the president 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 confirmation power to select certain types of judges; (2) enacting constitutional amendments to reverse decisions or change Court structure or procedure; (3) impeachment; (4) withdrawing Court jurisdiction over certain subjects; (5) altering the selection and removal processes; (6) requiring extraordinary majorities for declarations of unconstitutionality; (7) allowing appeal from the Supreme 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 constraining the Court. Indeed, although the justices enjoy life tenure and undiminishable salaries, researchers have evaluated whether the justices moderate their behavior in rational anticipation of actions by Congress and/or the president. For example, the Court responds to budgetary constraints imposed by Congress in its rulings in civil liberties cases (Toma 1991), court-curbing legislation affects the Court's willingness to invalidate acts of Congress (Clark 2009), and current administrations influence the voting of individual justices' voting behavior in civil liberties cases (Epstein, Knight, and Martin 2001). And in their study of congressional responses to Supreme Court constitutional decisions, Meernik and Ignagni (1997, p. 458) conclude that, contrary to popular and scholarly opinion, the Congress can and does attempt to reverse Supreme Court [constitutional] rulings. Finally, a recent study, using a statute-centered rather than a case-centered analysis, uncovered evidence of considerable congressional constraint on the Court's constitutional rulings (Harvey and Friedman 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 order to 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 asapplied invalidation, SOP constraints may also cause the justices to moderate a constitutional decision's impact with an as-applied ruling when they anticipate that the sitting Congress favors the interests furthered by parties bringing the constitutional challenge. Nor are such strategic considerations limited solely to judicial review of federal enactments. To be sure, in the case of constitu-
Page 7
tional invalidation of congressional action, the Court's decision directly challenges the decisions of a coordinate branch. In that situation, the Court's decision may invite an adverse congressional response 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 on congressional preferences and thus invoke legislative responses for several reasons. First, Congress may respond to judicial invalidation of state enactments because of constituency pressures. Court decisions regarding prayer in public schools, abortion, desegregation, and school busing have all generated tremendous public outcry and Congressional denunciation (Meernik and Ignagni 1995, p. 44). Second, judicial decisions invalidating state legislative acts may have implications for congressional enactments as well; when the Court invalidates a state law regulating abortion, for example, it reduces federal power to regulate abortion at the same time. Thus, while its own power may not be directly affected by the Court ruling, significant concerns regarding federal power may be (Meernik and Ignagni 1995, p. 57). Third, members of Congress not only represent 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 the Court'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 when the Court evaluates the constitutionality of federal or state legislation. The preceding discussion suggests that the justices' choices to invalidate legislation on its face or as applied may be driven both by the justices' preferences for the underlying statute as well as by SOP dynamics that cause the justices to act strategically in order to avoid confrontation with the elected branches. We now turn to our approach to evaluating these hypotheses by, first, describing the data we use to construct our model of judicial review and, second, specifying the hypotheses we test and the variables we use to test them. We then describe the results of our model estimation procedure. 3. MODELING JUDICIAL REVIEW 3.1. Dependent Variables Our project is to evaluate the influences on the justices' decisions to strike down legislation on constitutional grounds, with a focus on the method by which the justices invalidate legislation. To evaluate the justices' behavior, we collected data on the individual justices' votes to uphold or invalidate state or federal laws (in whole or in part) from the *478 1969-2004 terms (the Burger and Rehnquist 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 generated a database of 6,590 votes to strike or uphold state, federal, or local legislation from 1969 to 2004 (coded one if the justice voted to strike and zero otherwise) and 3,212 votes to strike any part 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 other actors 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 the Court'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-
Page 8
come of the specific case before them. Moreover, we expect that the justices respond to congressional preferences at both stages of the decision since striking a statute as applied poses less of a challenge 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 conceptualize legislative constraint*479 in terms of the nature of the challenge brought to the statute and the configuration 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 challenge brought by a liberal interest group to a prevailing state or federal enactment. If at the time of the challenge, congressional preferences are extremely conservative, the justices may be less inclined to accommodate the liberal constitutional challenge because such a liberal result would be less favored by the sitting legislature. In that sense, the prevailing preferences in Congress may constrain the justices' discretion as they consider the substance of the constitutional claim before them. The same relationship may exist in the opposite direction, and the degree of constraint is likely to be more pronounced as congressional preferences become more extreme in the conservative 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 by the 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 Congress'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, it avoids the difficulties inherent in categorizing statutory content along a liberal/conservative dimension, 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 ideological 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, especially given the strategic nature of the legislative process. Amendments added by more conservative members of the legislature may moderate the impact of a statute with more liberal policy objectives (consider Title VII or the Voting Rights Act, for example). Such conservative amendments 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 measured through references to the legal basis for the challenge or the parties bringing suit. On the basis of this hypothesized relationship between congressional preferences concerning the challenged statute and the justices' willingness to strike that legislation, therefore, we offer the following hypotheses to be tested empirically: Hypothesis 1. A justice will be more likely to vote to strike a statute as the sitting Congress's preferences become increasingly aligned ideologically with the interests of the parties bringing the constitutional challenge.
Page 9
Hypothesis 1A. A justice will be more likely to vote to strike a statute on its face when the sitting Congress's preferences become increasingly aligned with the interests of the parties bringing the constitutional challenge. Finally, we also note that congressional influence in either form may be more pronounced for those justices in the majority, since justices voting in dissent may be less concerned about the institutional impact of their decisions. As a further test of our hypotheses, therefore, we evaluate the influence of congressional preferences on justices in the majority only, and we take up this additional analysis in the discussion of our results. 3.3. Congressional Preferences: Measurement To test these hypotheses, we need to measure congressional preferences concerning the nature of 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 the legal basis for the suit following conventional coding procedures *481 used in political science literature on the courts. [FN9] The measure Congressional Support for Challenger reflects the degree to which the preferences of the median members of each chamber are consistent with the direction of the legal challenge brought to each enactment. We calculate congressional preferences as 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 enactment on the basis of the Spaeth database (coded as liberal [1)] or conservative [--l]). [FN11] Since the JCS scores are continuous, with positive values associated with liberal positions and negative values with conservative positions, [FN12] we multiplied the ideological direction of the challenge 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 associated with 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 is more 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 when congressional preferences are consistent with those of the challengers. When a statute faces a liberal challenge and Congress is more conservative, however, the opposite influence should arise. Since this variable increases in value as congressional preferences increase concerning the challenge, we expect a positive sign on this variable's coefficient; that is, the justices should be more likely 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' choice to 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 Spaeth 1993, 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 by ideological considerations, with liberal justices voting to strike conservative statutes and with conservative justices voting to strike liberal statutes. Sala and Spriggs (2004) also find that attitudinal considerations 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-
Page 10
stitutional challenge increases, the justice will be less likely to strike the statute. To create a preference measure for the individual justices (Justice Support for the Challenger), we use the same technique described above to measure congressional preference for the challenge (that is, we multiplied the justice's JCS score by the ideological direction of the challenge to create a judicial preference measure). Justices closer to the center of the Court therefore reflect less extreme ideological reactions to the direction of the challenge at issue. [FN13] As with the measure of congressional 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 play in constitutional litigation before the Court. For that reason, it is critical to add variables reflecting the role of the solicitor general. To do so, we code three separate variables. First, we code whether the solicitor general appeared before the Court representing the federal government as a direct party in the litigation in support of the challenged law. Because the solicitor general also frequently appears as amicus at the Court's request, we code whether the solicitor general supported or opposed the statute's constitutionality in that role. Although as an alternative approach we could have used the president's JCS score to account for his ideological position relative to the challenger, we concluded that incorporating variables reflecting the solicitor general's*483 position in the litigation is likely a more accurate reflection of presidential preferences (Meinhold and Shull 1998). Like the solicitor general's participation, filings by amicus curiae may influence the Court's decisions on the merits; recent research indicates that amicus briefs influence the justices' votes on the merits as well as at the case selection stage (Collins 2008). To evaluate the impact of amicus on the justices' votes, we code a variable measuring the number of amicus briefs filed in support of the statute's constitutionality and a variable measuring the number of amicus briefs filled in opposition to the statute. The statute's age may also be a relevant consideration, but two opposing arguments can be made regarding the expected influence of a law's age on the Court's deliberations. First, to the extent that the Supreme Court's interpretation of the Constitution changes over time, older statutes may 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 generally prefers statutes enacted by the dominant ruling coalition at the time of the Court's decision and is more likely to strike statutes that are more than 4 years old (Dahl 1957). On the other hand, one might 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: as precedent ages, the probability of being positively interpreted decreases until the precedent becomes very old, at which point positive interpretations increase (Hansford and Spriggs 2006). This influence may mitigate in favor of both a finding that the statute is constitutional and a choice to invalidate as applied rather than on the statute's face. To test these alternative hypotheses, we include 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 deference to federal than state statutes, striking down more than twice as many state laws as federal laws and at a greater rate (Solberg and Lindquist 2006). Thus, we control for the source of the statute (coded one if a federal law and zero if a state law). We expect that the justices will be less likely 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-
Page 11
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 are challenged, the justices may be more inclined to strike the statute because of more systemic problems in the policy scheme. 3.4.2. Decision to Strike Facially versus As Applied. When examining the justices' votes to strike a statute on its face or as applied, we include several of the same variables used to estimate the choice whether to strike but add additional variables uniquely relevant to the method of invalidation. First, we include a variable measuring congressional support for the challenger and a variable 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 should be invalidated only on its face (coded one if the party made any argument that the statute was invalid only on its face and zero if the party argued that the statute was invalid as applied or, in the alternative, that the statute was invalid on its face). We expect that if the party limits its arguments to 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 after Salerno was decided, coded one for decisions after 1986 and zero for those before 1987. Quite simply, 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 be more likely to declare a statute facially unconstitutional: First Amendment Free Speech, Commerce Clause, and Abortion. [FN14] We also include a control for the source of the statute at issue, coded one for a federal statute and zero for a state statute. We expect that the Court will be less likely to strike a federal statute on its face than a state statute. Finally, we include a variable reflecting the number of statutory provisions at issue. When the challenge involves multiple *485 provisions, the justices may be more inclined to strike the statute on its face because of greater difficulties with severance and because it may reflect deeper constitutional problems with the overarching 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 constitutionality 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 to model these choices, we explored various possibilities that reflect different assumptions about the justices' underlying decision-making process in constitutional cases. Several alternative approaches 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 choice to 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 infirm, and, if she finds that the statute violates a constitutional provision, she then makes the choice 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-
Page 12
lection bias; the observations included in the second model are dependent on the outcome of the initial choice to invalidate a statute. Heckman selection models provide a method to control for selection 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 statutes. Since we have a dichotomous outcome at both stages of the decision process, the appropriate model in such a case is the binomial probit with selection (Baum 2006, p. 272). [FN15] TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Figure 2. Decision tree in constitutional cases Another alternative is that the justices make the choice regarding constitutional validity and method of invalidation simultaneously, perhaps*486 in an ordered fashion such that an ordinal dependent variable (0 = uphold, 1 = strike as applied, and 2 = strike on face) appropriately reflects the hierarchical nature of the choice (Figure 3). Characterizing the dependent variable in this ordinal fashion is also consistent with both the increasing level of confrontation with the elected branches and the presumption against facial invalidations. If this characterization is accurate, then ordered probit or some related method, such as multinomial logit, might be appropriate to model the justices' voting behavior. TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE 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 could make the two choices independently such that the decision of the choice of method (as applied or facial) is made without consideration for factors associated with the decision to strike the statute in the first place. If the choice of method is not affected by selection bias because the two stages are 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 (one modeling the decision to strike, the second the decision regarding method of invalidation); (2) a binomial probit model with selection (using the heckprob command in Stata 10 and two different model specifications, as explained below); (3) a multinomial probit model of an unordered choice between 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 Table 1, we present the results of the separate logit models and of two approaches to the binomial probit model with selection. Model I incorporates only those variables identified as theoretically relevant at each stage of the model, with the lower court resolution of the constitutional issue serving as the 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 specification is reported as model II in Table 1. [FN17] Although neither selection model produces a significant p-value (suggesting the absence of selection bias), we nevertheless present the results from these three specifications to demonstrate the robustness of our results using these alternative estimation strategies.
Page 13
Table 1. Estimates of the Decision to Strike and the Method of Invalidation
Logit Model
Binomial Probit Model with Selection I SE Coefficient SE
Binomial Probit Model with Selection II Coefficient SE
Variable Choice to strike: Congression al Support for Challenger Judicial Support for Challenger Lower Court Invalidated Statute SG Support of Statute SG Support (Amicus) of Statute SG Opposition (Amicus) to Statute Amicus Support of Statute Amicus Opposition to Statute Age of Statute Federal Stat-
Coefficient
FN 1.522 [FNaa1]
.594
FN .902 [FNaa1]
.352
FN .945 [FNaa1]
.375
FN 1.893 [FNaaa1]
.095
FN 1.141 [FNaaa1]
.055
FN 1.142 [FNaaa1]
.055
FN -.334 [FNaa1]
.117
FN -.223 [FNaa1]
.072
FN --241 [FNaaa1]
.071
-.323
.249
-.188
.149
-.180
.149
FN -.670 [FNaaa1]
.178
FN -.398 [FNaaa1]
.107
FN -.381 [FNaaa1]
.111
FN .768 [FNaa1]
.325
FN .438 [FNa1]
.191
FN .432 [FNa1]
.193
FN -.042 [FNaa1]
.017
FN -.026 [FNaa1]
.010
FN -.027 [FNaa1]
.011
FN .064 [FNaa1]
.025
FN .038 [FNaa1]
.015
FN .040 [FNaa1]
.015
-.002
.003
-.001
.002
-.001
.002
-.583
FN
.243
-.347
FN
.145
-.348
FN
.147
Page 14
ute Number of Provisions Challenged Post Salerno Commerce Clause Free Speech Abortion Party Argued Statute Facially Invalid Constant
[FNaa1]
[FNaa1]
[FNaa1]
.078
.057
.048
.034
.046
.035
-.026 .085
.081 .133
.171 .016 .086
.099 .180 .070
.175
.124
.113
.074
.053
.084
Choice to facially invalidate statute: Congression al Support for Challenger Judicial Support for Challenger SG Support of Statute SG Support (Amicus) of Statute SG Opposition (Amicus) to Statute Amicus Support of Statute FN 3.454 [FNaa1] 1.345 FN 1.898 [FNaa1] .699 FN 1.873 [FNaa1] .686
FN .288 [FNa1]
.147
FN .538 [FNaa1]
.202
FN .608 [FNaaa1]
.191
.421
.607
.100
.299
.073
.287
.639
.421
.196
.251
.155
.248
-.088
.536
.137
.308
.166
.297
.034
.049
.011
.026
.007
.025
Page 15
Amicus Opposition to Statute Age of Challenged Statute Federal Statute Number of Provisions Challenged Post Salerno Commerce Clause Free Speech
-.058
.043
-.019
.025
-.014
.025
-.014
.008
FN -.008 [FNa1]
.004
FN -.007 [FNa1]
.003
-.456
.595
-.332
.300
-.346
.285
FN .364 [FNa1]
.166
FN .203 [FNa1]
.096
FN .197 [FNa1]
.093
-.190 .434
.315 .476
-.078 .202
.160 .249
-.082 .225
.157 .241
FN 1.093 [FNaa1]
.419
FN .487 [FNa1]
.243
FN .522 [FNa1]
.239
Abortion Party Argued Statute Facially Invalid Constant
-.431 FN 4.075 [FNaaa1]
.556 .386
-.183 FN 2.026 [FNaaa1]
.304 .344
-.173 FN 1.956 [FNaaa1]
.296 .381
FN -1.081 [FNaaa1]
.303
FN -.987 [FNaaa1]
.216
FN -1.059 [FNaaa1]
.191
p-Value
.534
.633
Note. The p-values are one tailed where directionality is hypothesized. Robust standard errors are clustered on case citation. N = 6,501, 3,340 censored and 3,161 uncensored. SG = solicitor general.
FNa1. p < 5%. FNaa1. p < 1%. FNaaa1. p < .1%. The multinomial logit and ordered probit models also produce substantially similar results, although we were concerned that the data violate certain assumptions associated with these models, including the parallel lines assumption in the latter case. [FN18] Moreover, the multinomial logit
Page 16
procedure does not allow comparison between the choice to invalidate on the statute's face or as applied, 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 consistent across all specifications. We also present descriptive statistics for all independent and dependent variables 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 in the analysis. To provide substantive meaning to the coefficients in the models, we estimate predicted probabilities of the two voting outcomes caused by changes in the values of statistically significant 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 Congressional Support for Challenger (min max) Judicial Support for Challenger (min max) Lower Court Declared Unconstitutional (yes no) SG (Amicus) Supports Opposes Statute Amicus Opposition to Statute (min max) Amicus Support of Statute (min max) State Statute Federal Statute .393 .551
Change in Probability + .158
.162 .811
+ .649
.442 .526
+ .084
.340 .502
+.162
.447 .769
+.322
.505 .183
-.322
.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
Page 17
Predicted Probability Congressional Support for Challenger (min max) Judicial Support for Challenger (min max) No Free Speech Challenge Free Speech Claim No Party Claim of Facial Invalidity Party Claim Number of Provisions Challenged (min max) .649 .888
Change in Probability + .239
.767 .841
+ .074
.790 .918
+.128
.368 .972
+.604
.795 .998
+.203
Note. Baseline [Pr(strike on face) | (strike statute)] = .814. Probabilities are calculated with all other variables held at mean values.
4.1. The Choice to Strike In the decision whether to strike the challenged statute, the justices appear to be significantly influenced by congressional preferences. As congressional preferences for the challenger's ideological 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 the challenger's position), the probability of a vote to strike is .551. However, when congressional constraint is at its maximum, the probability of voting to strike is .393. These results indicate that the 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 predisposed ideologically 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 a major role, with justices more likely to strike a statute when their preferences are at odds with the ideological direction of the constitutional challenge. Specifically, the probability of voting to strike when the justice's support for the direction of the challenge is at its maximum is .811. The probability of a vote to strike dramatically decreases to .162 when the value on this variable is at its minimum. Separation-of-powers influences are not limited to Congress, however. Acting through the solicitor 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
Page 18
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 challenged law. We test the impact of amicus briefs by varying the value on these variables from their minimum to their maximum. Specifically, if no amicus briefs supporting the statute are filed, the predicted probability of a vote to strike is .505. If the number of briefs supporting the statute shifts to 30, however,*492 the predicted probability of a vote to strike is reduced to .183. In contrast, if the number 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. The dummy variable reflecting whether the statute was federal or state is also significant, indicating that 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 Invalidation In evaluating the justices' votes to strike statutes on their face or as applied, judicial preferences for the challenger's ideological position also shape the choice of method of constitutional enforcement. When the justice prefers the ideological direction of the statutory challenge, she is more likely to find the statute facially invalid. Specifically, if the justice favors the ideological direction of the challenge, the predicted probability of striking the statute on its face is .824, while if she disfavors the ideological direction of the challenge, the predicted probability of striking the statute on its face falls to .733. Obviously judicial preferences are much less influential in the context of the decision whether to strike the statute on its face rather than as applied, but nevertheless ideology 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, in this choice, the substantive impact exceeds the impact of judicial preferences. Specifically, when congressional preferences for the constitutional challenge are at the minimum value, the *493 predicted probability of a vote to strike the statute on its face is .649, compared to .888 when Congress favors the ideological direction of the constitutional challenge. At the same time, the variables measuring the influence of the solicitor general and interest groups indicate that these are not significant influences on the justices' choices regarding the proper method of invalidation, nor does 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 argued only that the statute was facially invalid, the predicted probability of a vote to strike the statute on its face increases from .368 to .972. This result demonstrates the importance of a party's arguments to the Court and the justices' reluctance to decide cases on the basis of arguments not presented to them (Epstein and Knight 1998, p. 162). The justices themselves have confirmed that the 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 facially invalidate 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 debate regarding Salerno, this finding is not surprising; the result could also stem from the rather crude
Page 19
measure that we use to assess the influence of Salerno (a simple dummy variable coded one for all years after 1986). Finally, as we expected, the number of statutory provisions challenged in each case affects whether any of those provisions are ultimately invalidated on their face or as applied. As the number *494 of statutory provisions that are challenged increases in a given case, the probability that the justices will vote to strike the statute facially (either in whole or in part) also increases. A challenge to multiple provisions apparently increases a statute's vulnerability to facial invalidation. These findings demonstrate that the justices' votes are influenced by forces arising from the system of separated powers. As a final test of our hypotheses, however, we also theorize that SOP constraints, if present, should exercise the greatest effect on justices in the Court majority. After all, a justice in dissent need not concern herself much with congressional response because her vote will have no effect on legislative prerogatives. To evaluate this supposition, we model the justices' votes in the majority and dissent separately; the results of those separate model estimations are presented in Table 4. [FN21]
Table 4. Logit Estimates of the Decision to Strike and the Method of Invalidation: Majority versus Dissenting Justices
Majority Justices Variable Choice to Strike: Congressional Support for Challenger Judicial Support for Challenger Lower Court Invalidated Statute SG Support of Statute SG Support (Amicus) of Statute SG Opposition (Amicus) to Statute Amicus Support of 1.539 FN [FNa1] .838 Coefficient SE
Dissenting Justices Coefficient SE
1.070
1.288
1.359
FN [FNaaa1]
.077
3.541
FN [FNaaa1]
.244
-.421
FN [FNaa1]
.167
.061
.235
-.743
FN [FNa1]
.372
1.044
FN [FNa1]
.463
-.997
FN [FNaaa1]
.281
.589
FN [FNa1]
.340
1.049
FN [FNa1]
.497
.081
.623
-.065
FN [FNa1]
.029
.004
.046
Page 20
Statute Amicus Opposition to Statute Number of Provisions Challenged Age of Statute Federal Statute Constant Observations 5,023 -.656 .119 FN [FNaa1] .041 -.104 FN [FNa1] .059
.048
.087
.317
FN [FNa1]
.179
-.004 FN [FNa1]
.004 .357 .175 -.650a 1,478
.008 -.249 FN [FNa1]
.006 .454 .291
.313
Choice to Invalidate Statute on its Face: Congressional Support for Challenger Judicial Support for Challenger Post Salerno Federal Statute SG Support of Statute SG Support (Amicus) of Statute SG Opposition (Amicus) to Statute Amicus Support of Statute Amicus Opposition to Statute Commerce Clause 3.957 FN [FNaa1] 1.667 1.833 1.857
.215
.144
.514
.385
.107 -1.065 .914
.420 .788 .852
-.986
FN [FNa1]
.499 .539 .527
.760 -.756
.828
.584
.579
.518
-.072
.588
-.684
.789
-.019
.067
.138
FN [FNa1]
.066
-.037
.053
-.087
.087
.638
.574
-.427
.656
Page 21
Free Speech Abortion Party Argued Statute Facially Invalid Only Age of Statute Provisions Challenged Constant Observations
1.257
FN [FNa1]
.570 .662 .513 4.000
.622 -1.270 FN [FNaaa1]
.488 .899 .608
-.248 4.190 FN [FNaaa1]
-.018 .422 FN [FNa1]
.010 .214
-.005 .286
.012 .235
-1.183 2,368
FN [FNaa1]
.380 793
-.885
.510
Note. Robust standard errors are clustered on case citation. The p-values are one tailed where directionality is hypothesized. SG = solicitor general.
FNa1. p < 5%. FNaa1. p < 1%. FNaaa1. p < .1%. As we predicted, congressional preferences appear to operate most prominently on justices in the majority. With respect to the vote to strike the challenged enactment, congressional preferences for the challenged statute influence the justices in the majority but have no significant impact on the justices in dissent. Indeed, a justice in dissent need not concern herself with congressional response, since her vote will have no actual impact on legislative prerogatives. This conclusion is further supported by the finding that congressional preferences affect the justices in the majority when deciding both whether to strike the statute and whether to strike the statute facially or as applied but do not affect those in dissent. In sum, we believe that these results provide further support for our hypotheses that, when it comes to judicial review, justices are influenced by their decision-making environments when they are aware that their decisions may produce an adverse response. Dissenters have no such concerns and thus are less affected by SOP dynamics, although they continue to be influenced by their own personal policy preferences. 5. CONCLUSION: SEPARATIONS OF POWERS AND A MULTISTAGE DECISIONAL PROCESS Scholars who study the Court's responsiveness to the preferences of elected officials often rely on a theoretical framework that characterizes the justices as strategic actors who are sensitive to and anticipate the *495 reactions of other governmental actors to the Court's exercise of judicial review. Indeed, the advent of positive political theory focused attention on the institutional constraints on the Court's exercise of its powers. In particular, SOP models of the Court's decisionmaking highlight the potential for strategic action by Supreme Court justices in anticipation of po-
Page 22
tentially retaliatory action by other governmental actors, including *496 Congress and the president. Separation-of-powers models begin with the assumption that, like other political actors, Supreme 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 regarding 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 elected branches 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 analysis of the justices' choices to invalidate statutory enactments and their choices to invalidate enactments 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 when deciding substantive constitutional issues as well as when they decide the appropriate method of constitutional enforcement. First, in the choice whether to invalidate challenged enactments, the individual justice's votes are influenced by congressional preferences concerning the constitutional challenge raised. In addition, the justices are influenced by whether the solicitor general supports or opposes the statute at issue as amicus and the number of amicus briefs filed in support or opposition to the statute. These results indicate that the justices' votes are significantly affected by forces related to the separation of powers. Even when deciding whether to invalidate a statute on its face or as applied, the justices' votes are shaped by congressional preferences regarding the ideological direction of the legal challenge. [FN22] Although the Court's exercise of judicial review 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 governmental system. Our findings are further supported by the separate models of the justices' votes in the majority and dissent. There the results show that when a justice dissents, she does not vote in a manner evidencing concern for the elected *497 branches, but a justice in the majority is substantially influenced by other actors. At the same time, we recognize that further nuances in this story might be explored in future research. For example, while we show that the justices are influenced by congressional preferences, it is possible that they are operating within a system of regime politics such that their propensity to uphold or strike a statute is enhanced when their preferences are congruent with those of sitting legislators and/or the president (Dahl 1957; Whittington 2007). Our statistical tests simply account for the preferences of actors within the coordinate branches without considering regime effects; such an approach holds promise for future research (Segal, Westerland, and Lindquist 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 legislation. 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, perhaps because the conservative Court majority had then come to operate within an insulated zone of legislative approval (see also Segal, Westerland, and Lindquist 2011). It is not clear whether the same dramatic effect would accompany a leadership change in a single chamber (such as the switch to a Republican majority in the House in 2010), but it is possible that ideological change within a single chamber may change the ideological center in Congress sufficiently to alter the institutional context within which the justices render their decisions. Our results certainly demonstrate 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-
Page 23
ence that the Court is indeed significantly influenced by majoritarian preferences when deciding whether and how to exercise its most powerful institutional check on the elected branches. Our study 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 justices both as to the substantive constitutional doctrine that they pursue as well as the method of constitutional 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 Variable As Applied versus Uphold: Congressional Support for Challenger Judicial Support for Challenger Lower Court Struck Statute SG Support of Statute SG Support (Amicus) SG Opposition (Amicus) Amicus Support of Statute Amicus Opposition to Statute Age of Statute .963 1.814 .423 .902 .977 Coefficient SE
Ordered Probit Coefficient SE
FN [FNaaa1]
.168
FN [FNaaa1]
.127
1.028
FN [FNaaa1]
.037
-.585
FN [FNaa1]
.187
-.134
FN [FNaaa1]
.033
-.267
.418
-.175
FN [FNaa1]
.074
FN -1.172 [FNaaa1] FN [FNa1]
.335
-.284
FN [FNaaa1]
.055
.453
.371
FN [FNaaa1]
.081
-.106
FN [FNaa1]
.036
-.020
FN [FNaaa1]
.006
.111
FN [FNaa1]
.038
.029
FN [FNaaa1]
.006
.006
.005
-.002
.001
Page 24
Federal Statute Post Salerno Commerce Clause Free Speech Abortion Party Argued Statute Facially Invalid Only Number of provisions challenged Constant
-.571 .097 -.341 -.402 .346 FN -2.711 [FNaaa1]
.422 .215 .353 .302 .627 .347
-.309
FN [FNaaa1]
.072 .037 .059 .049 .100 .032
-.031 .196 .219 FN [FNaaa1] FN [FNaaa1]
-.013 .480 FN [FNaaa1]
-.105
.117
.059
FN [FNaaa1]
.018
-.061
.212
.205 .701
FN [FNa]
.037 .037
FN [FNa]
FN [FNb]
FN [FNb]
Facial versus Uphold: Congressional Support for Challenger Judicial Support for Challenger Lower Court Struck Statute SG Support of Statute SG Support (Amicus) SG Opposition (Amicus) -.433 2.129 FN [FNaa1] .741
1.962
FN [FNaaa1]
.107
-.248
.141
-.326
.279
FN [FNa1]
.198
.714
FN [FNa1]
.366
Page 25
Amicus Support of Statute Amicus Opposition to Statute Age of Statute Federal Statute Post Salerno Commerce Clause Free Speech Abortion Party Argued Statute Facially Invalid Only Provisions Challenged Constant 1.090 .429 .476 -.555
-.031
.019
.052
.029
-.005 FN [FNa1]
.004 .276 .158 .249 .189 .308 .142
-.071 FN [FNa1] FN [FNa1]
-.072 FN [FNaaa1]
.112
FN [FNa1]
.060
FN -1.062 [FNaaa1]
.179
Note. Robust standard errors are clustered on case citation. The p-values are one tailed where directionality is hypothesized. 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 Congressional
Mean .032
SD .101
Min -.211
Max .211
Page 26
Support for Challenger Judicial Support for Challenger Lower Court Declared Statute Unconstitutional SG Support of Statute SG Support (Amicus) of Statute SG Opposition (Amicus) to Statute Amicus Support of Statute Amicus Opposition to Statute Age of Statute Federal Statute Post Salerno Commerce Clause Free Speech Abortion Party Argued Statute Facially Unconstitutional Number of Statutory Provisions Challenged Note. SG = solicitor general. .014 .433 -.817 .817
.509
.500
.248
.432
.110
.313
.039
.193
2.096
3.804
36
2.282
3.029
22
15.918 .272 .347 .087 .131 .029 .485
19.685 .445 .476 .281 .337 .168 .500
1 0 0 0 0 0 0
143 1 1 1 1 1 1
1.344
1.057
15
Page 27
*499 References Adler, Michael D., and Michael C. Dorf. 2000. Rights and Rules: An Overview. Legal Theory 6:241-51. Baum, Christopher. 2006. An Introduction to Modern Econometrics Using Stata. College Station, Tex.: Stata Press. Bergara, Mario, Barak Richman, and Pablo T. Spiller. 2003. Modeling Supreme Court Strategic Decision Making: The Congressional Constraint. Legislative Studies Quarterly 28:247-80. Berman, Mitch. 2004. Constitutional Decision Rules. Virginia Law Review 90: 1-168. Bickel, Alexander. 1961. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New Haven, Conn.: Yale University Press. Bilder, Mary Sarah. 2008. Idea or Practice? A Brief Historiography of Judicial Review. Journal of Policy History 20(l):6-26. Clark, Tom. 2009. The Separation of Powers, Court-Curbing and Judicial Legitimacy. American journal of Political Science 53(4):971-89. Collins, Paul M., Jr. 2008. Friends of the Supreme Court: Interest Groups and Judicial Decision Making. New York: Oxford University Press. Dahl, Robert A. 1957. Decision-Making in a Democracy: The Supreme Court as National Policy Maker. Journal of Public Law 6:279-95. *500 Dorf, Michael C. 1994. Facial Challenges to State and Federal Statutes. Stanford Law Review 46:235-94. Epstein, Lee, and Jack Knight. 1998. The Choices justices Make. Washington, D.C.: CQ Press. Epstein, Lee, Jack Knight, and Andrew D. Martin. 2001. Dahl Symposium: The Supreme Court as a Strategic National Policymaker. Emory Law Journal 50: 583-611. Epstein, Lee, Andrew Martin, Jeffrey Segal, and Chad Westerland. 2007. The Judicial Common Space. Journal of Law, Economics, and Organization 23: 303-25. Fallon, Richard H. 2000. Commentary: As Applied and Facial Challenges and Third Party Standing. Harvard Law Review 113:1321-70. __________. 2006. Facial Challenges, Legislative Purpose, and the Commerce Clause. Iowa Law Review 92:41-104. Franklin, David L. 2009. Looking through Both Ends of the Telescope: Facial Challenges and the Roberts Court. Hastings Constitutional Law Quarterly 36:689-716. Friedman, Barry. 1993. Dialogue and Judicial Review. Michigan Law Review 91:577-682. __________. 2005. The Politics of Judicial Review. Texas Law Review 84:257-337. __________. 2009. The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. New York: Farrar, Straus & Geroux. Gans, David H. 2005. Strategic Facial Challenges. Boston University Law Review 85:1333-88. Hansford, Thomas, and James F. Spriggs II. 2006. The Politics of Precedent on the United States Supreme Court. Princeton, N.J.: Princeton University Press. Hartnett, Edward A. 2006. Modest Hope for a Most Roberts Court: Deference, Facial Challenges, and the Comparative Competence of Courts. Southern Methodist Law Review
Page 28
59:1735-60. Harvey, Anna, and Barry Friedman. 2006. Pulling Punches: Congressional Constraints on the Supreme Court's Constitutional Rulings, 1987-2000. Legislative Studies Quarterly 31:533-62. Harvey, Anna, and Michael J. Woodruff. 2009. Confirmation Bias in the United States Supreme Court Judicial Database. http:// www.themonkeycage.org/HarveyWoodruff_ConfBias_2009.pdf. Isserles, Marc E. 1998. Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement. American University Law Review 48:359-456. Kreit, Alex. 2010. Making Sense of Facial and As-Applied Challenges. William and Mary Bill of Rights Journal 18:657-707. Lindquist, Stefanie A., and Rorie Spill Solberg. 2007. Judicial Review by the Burger and Rehnquist Courts: Explaining Justices' Responses to Constitutional Challenges. Political Research Quarterly 60:71-91. *501 Marshall, Thomas R. 1989. Public Opinion and the Supreme Court. Winchester, Mass: Unwin Hyman. Meernik, James, and Joseph Ignagni. 1995. Congressional Attacks on Supreme Court Rulings Involving Unconstitutional State Laws. Political Research Quarterly 48(l):43-59. __________. 1997. Judicial Review and Coordinate Construction of the Constitution. American Journal of Political Science 41(2):447-67. Meier, Luke. 2010. Facial Challenges and Separation of Powers. Indiana University Law Review 85(4):1557-98. Meinhold, Stephen S., and Steven A. Shull. 1998. Policy Congruence between President and the Solicitor General. Political Research Quarterly 51(2):527-37. Metzger, Gillian. 2005. Facial Challenges and Federalism. Columbia Law Review 105:873-932. __________. 2009. Facial and As-Applied Challenges under the Roberts Court. Columbia Public Law Research Paper No. 09-198. Columbia University Law School, New York. http://papers.ssrn.com.sol3/papers.cfm?abstract_id-1338895. Mishler, William, and Reginald A. Sheehan. 1993. The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decision. American Political Science Review 87(1):87-101. Monaghan, Henry Paul. 1981. Overbreadth. Supreme Court Review 1981:1-40. Nelson, Caleb. 2008. Judicial Review of Legislative Purpose. New York University Law Review 83:1784-1882. Persily, Nathaniel, and Jennifer S. Rosenberg. 2009. Defacing Democracy?: The Changing Nature and Rising Importance of As-Applied Challenges in the Supreme Court's Recent Election Law Decisions. Minnesota Law Review 93: 1644-79. Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring about Social Change? Chicago: University of Chicago Press. Sala, Brian R., and James F. Spriggs II. 2004. Designing Tests of the Separation of Powers and the Supreme Court. Political Research Quarterly 57:197-208. Segal, Jeffrey A., and Harold Spaeth. 1993. The Supreme Court and the Attitudinal Model. New York: Cambridge University Press. __________. 2002. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press. Segal, Jeffrey A., Chad Westerland, and Stefanie A. Lindquist. 2011. Congress, The Supreme Court, and Judicial Review. American Journal of Political Science 55(1):89-104. Solberg, Rorie Spill, and Stefanie A. Lindquist. 2006. Activism, Ideology, and Federal-
Page 29
ism: Judicial Behavior in Constitutional Challenges before the Rehnquist Courts, 1986-2000. Journal of Empirical Legal Studies 3(2):237-61. Spiller, Pablo T., and Rafael Gely. 1992. Congressional Control of Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988. RAND Journal of Economics 23:463-92. *502 Stewart, Nathaniel. 2004. Turning the Commerce Clause Challenge on Its Face: Why Federal Commerce Clause Statutes Demand Facial Challenges. Case Western Reserve Law Review 55:161-212. Sunstein, Cass R. 1999. One Case at a Time: Judicial Minimalism on the Supreme Court. Boston: Harvard University Press. Toma, Eugenia Froedge. 1991. Congressional Influence and the Supreme Court: The Budget as a Signaling Device. Journal of Legal Studies 20:131--46. Wedeking, Justin. 2010. Supreme Court Litigants and Strategic Framing. American Journal of Political Science 54(3):617-31. Whittington, Keith E. 2007. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, N.J.: Princeton University Press. [FNa1]. STEFANIE A. LINDQUIST is the A. W. Walker Centennial Chair in Law at the University of Texas Law School. PAMELA C. CORLEY is an Assistant Professor at Southern Methodist University's Department of Political Science. The authors would like to thank William Blake, Tyler Bexley, Jenna Lukasik, and Jennifer Selin for their research assistance and Sean Farhang 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 protection of constitutional safeguards. [FN2]. As Berman (2004) indicates, implementation of constitutional meaning often requires development of certain constitutional decision rules that direct courts as to the method to adjudicate claimed violations of the Constitution. [FN3]. Justices have other options available to minimize the impact of their rulings or refrain from ruling altogether. Justiciability standards, as well as the doctrine of constitutional avoidance, allow the justices to forgo ruling on the constitutional issue altogether. In this paper, we address one minimizing technique involving the method of constitutional avoidance and leave these other alternatives to future research. [FN4]. As-applied invalidations are available only in the presence of severability, such that unconstitutional 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 the unconstitutional applications ... or sever its problematic proportions. [FN5]. Under the current Court's formulation at least, as-applied challenges need not be limited exclusively to the plaintiff's unique circumstances but might extend to certain classes of contexts (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 on its face but might be subject to an as-applied challenge from a class of voters who were burdened by the statute. In other words, as Metzger (2009, p. 13) notes, the as-applied challenge need not
Page 30
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 reason for the mismatch between rhetoric and reality in this area might be related to the rise of the purpose doctrine in constitutional law; to the extent that a statute is invalidated because it was enacted with an improper purpose, no conceivably constitutional application can save the statute under Salerno. [FN7]. To do so, we first identified all cases in the U.S. Supreme Court Database in which the variable 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 identify cases in which the Court considers a statute's constitutionality but upholds the law, we relied on the auth_dec variables, as well as the Justice-Centered Supreme Court Databases, to identify these additional 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 clearly identify cases in which a statute was challenged but upheld unanimously. [FN8]. Often, this is a relatively straightforward enterprise. However, occasionally the justices are not clear which method they are using to invalidate a statute. Thus, we applied the following coding convention: when the justices' opinions included language that appeared to clearly limit the invalidation to the facts of the case, we coded the justice as having voted to strike the statute as applied. Otherwise, we coded the justice as voting to strike the statute on its face. To resolve the question, we also compared majority, concurring, and dissenting opinions to glean information about the approach taken by the individual justices, and we occasionally sought guidance in the briefs and even reviewed the affected statute to determine whether (particularly in the case of state legislation) the legislature had repealed the statute in light of the Court's pronouncement (reflecting the proposition, we thought, that the statute had been facially invalidated). [FN9]. We recognize that the Spaeth database and its directionality codes have been subject to some criticism in the literature (for example, Harvey and Woodruff 2009). But the Harvey and Woodruff critique suggests that the bias in the database militates against a finding of congressional influence or constraint. Thus, the use of these measures is not likely to bias our findings toward a finding of congressional constraint. [FN10]. Judicial Common Space (JCS) scores place the justices' ideological Martin/Quinn scores on the same scale as congressional Poole-Rosenthal scores (see Epstein et al. 2007). [FN11]. In a few cases, the database does not include such directionality codes because the ideological direction of the challenge could not be coded (for example, Clinton v. New York, 524 U.S. 417 [1998]; Bowsber v. Synar, 478 U.S. 714 [1986]). We excluded those cases from our data set. [FN12]. As originally coded, the JCS scores associates liberalism with negative values and conservatism with positive values. We switched the signs on these scores for our own purposes. [FN13]. We recognize that a zero on the JCS scores is not a perfect reflection of the median on the Court. Yet the values of justices close to the center suggest that the zero is not arbitrarily placed: Justices Sandra Day O'Connor and Anthony Kennedy, for example, earn scores that are slightly more conservative than the center zero point. [FN14]. Using the Spaeth's Supreme Court Judicial Database, we create the dummy variable
Page 31
Commerce Clause, which is equal to one if the variable Law in the database is coded 183. Abortion equals one if the variable Issue in the database is coded 533, and Free Speech is coded one if Issue is coded 401, 451, 471, or 472. [FN15]. We appreciate that the decision tree has earlier nodes to the extent that selection also takes place at the agenda-setting stage. Since no data are readily available to estimate a model of the decision at certiorari, we instead control for the agenda-setting process by introducing a variable reflecting whether the lower court invalidated the statute at issue. [FN16]. Relatedly, we might consider whether the decision to strike is truly endogenous to the decision regarding the method of invalidation: a justice faced solely with the choice to strike a statute on its face might be less inclined to vote to strike the statute at all. For example, the parties may not present the justices with an alternative to strike the statute as applied, in which case the justices might be hesitant to act in a manner not argued by the parties. Recent research suggests that such framing effects may shape outcomes at the Supreme Court (Wedeking 2010). In that situation, a justice who is forced into a facial invalidation by the parties' arguments may err on the side of finding the statute valid after all, even if the justice has doubts about the constitutionality of the legislation in general or as applied to specific circumstances. This possibility seems feasible to the extent that Salerno cautions against facial invalidations and is consistent with the Court's occasional recognition that a statute valid on its face might be subject to future as-applied challenges. We test for this possible effect by incorporating a variable into the strike model reflecting whether the party argued that the statute was invalid on its face without a corresponding argument that the statute was invalid as applied (see Binomial Probit Model with Selection II in Table 1); the variable is not significant, which suggests that the justices are not affected by the parties' arguments regarding the method of invalidation at the strike stage. Nevertheless, further exploration of such framing effects is warranted. [FN17]. We thank the editor for this suggestion. [FN18]. We also explored nested logit and stereotype logit methods but found that they were intractable or did not converge. [FN19]. The predicted probabilities are based on the logit models. [FN20]. See Cutter v. Wilkinson (544 U.S. 709, 713 [2005]), which notes that the parties raised only a facial challenge, thus precluding any reason to evaluate whether the statute was unconstitutional as applied; Clingman v. Beaver (544 U.S. 581, 598 [2005]), which observes that the challenger limited constitutional claim to one of facial invalidity only; and United States v. American Library Association (539 U.S. 194, 214 [2003]), which recognizes the Court's evaluation of the law's constitutionality as limited to facial challenge only; but see Meier (2010), who suggests that the parties' frames have no systematic impact on the justices' behavior. This is akin to the idea that the substantive constitutional standard is influenced by the nature of the remedy that the Court is inclined to use to remedy the constitutional violation. For a discussion of this conflation between the substantive standard and the form of remedy available in individual cases (as applied or facial invalidations), see Kreit (2010). [FN21]. As with the initial models of justices' votes in both majority and dissent (reported in Tables 1 and A2), we explored alternative specifications of the separate majority and dissent models presented in Table 2. Again, the results were substantially similar across all specifications; for simplicity's sake, we include only the logit results in Table 2.
Page 32
[FN22]. We note that the influence of congressional preferences could be interpreted to reflect the impact of public opinion on the Court, measured indirectly through Congress. Because of collinearity between congressional preferences and public opinion, of course, it is almost impossible to disentangle these two variables. In any event, any separation-of-powers model that considers the influence of the elected branches is subject to this interpretation; this study is no different. 40 J. Legal Stud. 467 END OF DOCUMENT

Paper On Judicial Review PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Paper On Judicial Review PDF

Uploaded by

Copyright:

Available Formats

Westlaw Delivery Summary Report for IJA, Your Search: Date/Time of Request: Client Identifier: Database: Citation Text:

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

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

Binomial Probit Model with Selection I SE Coefficient SE

Binomial Probit Model with Selection II Coefficient SE

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

.171 .016 .086

.099 .180 .070

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

Abortion Party Argued Statute Facially Invalid Constant

-.431 FN 4.075 [FNaaa1]

-.183 FN 2.026 [FNaaa1]

-.173 FN 1.956 [FNaaa1]

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

Change in Probability + .158

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

Change in Probability + .239

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

Dissenting Justices Coefficient SE

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

.004 .357 .175 -.650a 1,478

.008 -.249 FN [FNa1]

.006 .454 .291

.107 -1.065 .914

.420 .788 .852

.499 .539 .527

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

40 JLEGST 467 40 J. Legal Stud. 467

.570 .662 .513 4.000

.622 -1.270 FN [FNaaa1]

.488 .899 .608