Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
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Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
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Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
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Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
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Alice Ristroph alice.ristroph at shu.edu
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David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A New Database of Cases Reviewing the Constitutionality of Federal Laws
Keith E. Whittington
As I recently noted, Repugnant Laws has now been published by the University Press of Kansas in its excellent Constitutional Thinking series edited by Sandy Levinson and Jeff Tulis. The book explores the political history of how the U.S. Supreme Court has exercised the power of judicial review over federal legislation from the founding to the present. It argues that the Court has been more active in evaluating the constitutionality of congressional action than is generally appreciated, but it has perhaps also been less consequential than is generally assumed. The Court has acted as a kind of partner with the dominant political coalition, which does not make the Court passive or unwilling to ever vindicate the rights of individuals and minorities but does keep the Court tethered to the values, interests and objectives of elected officials. The book is primarily qualitative, concerned with some broad patterns in the development of constitutional law and judicial behavior but often focusing on the particular political context in which the Court has operated.
The backbone of the project, however, is a new database that aims to provide a comprehensive catalog of all of the cases in which the U.S. Supreme Court has substantively evaluated the scope of congressional constitutional authority when considering the application of a federal law from 1789 to 2018. The Judicial Review of Congress Database is now freely available.
The database catalogs over 1300 cases in which the Court identified the constitutional limits on congressional power and assessed whether a federal statutory provision could be constitutionally applied in the case before them. It includes information about both the case and the legislation under review.
The Judicial Review of Congress Database indicates that the list of cases in which the Court has enforced constitutional boundaries against Congress is substantially longer than is suggested by the list initially compiled by Edward S. Corwin in the early 1950s and maintained today by the Congressional Research Service. Some of the difference relates to how to treat cases in which the Court constitutionally constrained the application of a statutory provision without simply voiding the provision in its entirety. Some of the difference likely results from low-visibility cases that were overlooked in the construction of the Corwin list. Users can judge for themselves which list better captures how active the Court has been in defining and enforcing constitutional limits on Congress and how constitutional law relating to the scope of the legislative authority of Congress has developed across American history.
In addition, the Judicial Review of Congress Database includes cases in which the Court substantively reviewed a constitutional challenge to the application of a statute and upheld congressional authority. Across its history, the Court has far more often upheld federal statutes than struck them down, and our understanding of how the Court has used the power of judicial review in practice is radically incomplete if we do not take note of the cases in which the Court has given its stamp of approval to congressional actions. Even in its most activist moments, the Court has generally embraced congressional power and turned away litigants hoping to rein Congress in.
For now, I have released an Excel spreadsheet version of the database, along with an explanation of how cases were identified and included in the database and how variables were coded. I expect to update and expand the database over time. The release of new versions will be made at the same location. I also expect to compile a summary list of the cases invalidating and of the cases upholding federal statutory provisions in a format comparable to the one used by the Congressional Research Service for their list of acts held unconstitutional in whole or in part by the Supreme Court.
Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. You can reach him by e-mail at kewhitt at princeton.edu