Judicial Review by the Burger and Rehnquist Courts

Abstract

In this article, the authors assess various influences on U.S. Supreme Court justices' behavior in cases involving judicial review of federal, state, and local statutes. Focusing on challenges to the constitutionality of statutes considered by the Burger and Rehnquist Courts during the 1969 to 2000 terms, the authors evaluate the impact of attitudinal, institutional, and contextual variables on individual justices' votes to strike or uphold statutes challenged before the Court. The authors find that the justices' ideological responses to the challenged statutes, the extent of amicus support for the statute, the support of the solicitor general, congressional preferences, and the existence of a civil liberties challenge to the statute are all significantly related to the justices' votes to invalidate or uphold statutes. They also find that in the Rehnquist Court, conservative justices are less likely to strike state statutes but more likely to strike federal laws than their liberal counterparts, while no similar “federalism” dimension emerges in the Burger Court. Indeed, in the Burger Court, a distinct pattern emerges with conservative justices more restraintist than liberal justices in both state and federal cases.