Why Does the Supreme Court Invalidate Federal Statutes?
In a 2007 article in the American Political Science Review, I examined every federal statute struck down by the Supreme Court from 1981 through 2006. For each statute, I compared the legislative coalition that had enacted it with the judicial coalition that struck it down. When a Republican judicial coalition invalidates a Democratic statute, the Court’s decision is consistent with a partisan account of judicial decision-making. Likewise, when a conservative judicial coalition invalidates a liberal statute, the decision is explicable on policy grounds. But when an ideologically mixed coalition invalidates a bipartisan statute, the decision may have reflected an institutional divide between judges and legislators rather than (or in addition to) a partisan or policy conflict. Perhaps surprisingly, I found more cases consistent with this last explanation than either of the others, as indicated in the following table.
Number of Supreme Court Decisions Invalidating Federal Statutes, by Enacting and Invalidating Coalitions, 1981-2006
| Enacting Coalition | Invalidating Coalition | ||
| Conservative | Mixed | Liberal | |
| DEM | 4 | 6 | 0 |
| Bipartisan | 10 | 20 | 4 |
| GOP | 1 | 7 | 1 |
Given such results, explored at length in the article, I suggest that the existing literature has paid insufficient attention to the possibility of institutionally motivated judicial behavior. Framed somewhat differently, I argue that any comprehensive account of the Court’s decisions will have to attend to the interaction of multiple competing influences on the justices.
My analysis in the 2007 articles was based on data through the end of the Rehnquist era. To date, the Roberts Court has invalidated seven federal statutes: a 1999 law prohibiting the creation, sale, or possession of video depictions of animal cruelty; provisions of the 1984 Bankruptcy Amendments and Federal Judgeship Act, the 2002 Sarbanes-Oxley Act, and the 2006 Military Commissions Act; and three separate provisions of the 2002 Bipartisan Campaign Reform Act (i.e., the McCain-Feingold law). The enacting and invalidating coalitions in these Roberts Court decisions look like this:
Number of Supreme Court Decisions Invalidating Federal Statutes, by Enacting and Invalidating Coalitions, Roberts Era to date
| Enacting Coalition | Invalidating Coalition | ||
| Conservative | Mixed | Liberal | |
| DEM | 3 | 0 | 0 |
| Bipartisan | 2 | 1 | 0 |
| GOP | 0 | 0 | 1 |
With these cases added to the earlier data, the
coalitions look like this:
Number of Supreme Court Decisions Invalidating Federal Statutes, by Enacting and Invalidating Coalitions, 1981-2011
| Enacting Coalition | Invalidating Coalition | ||
| Conservative | Mixed | Liberal | |
| DEM | 7 | 6 | 0 |
| Bipartisan | 12 | 21 | 4 |
| GOP | 1 | 7 | 2 |
The following table lists all federal statutes invalidated by the Court since
1981, in reverse chronological order by date of enactment.
Federal statutes invalidated by the Supreme Court, 1981-2011
|
Statute (Year of Enactment) |
Year of Invalidation |
|
Military Commissions Act (2006) |
2008 |
| Public Company Accounting Reform and Investor Protection Act (aka Sarbanes-Oxley Act) (2002) | 2010 |
|
Bipartisan Campaign Reform Act (aka McCain-Feingold Act) (2002) |
2003, 2007, 2008, 2010 |
|
Prohibition of depictions of animal cruelty (1999) |
2010 |
|
Food and Drug Administration Modernization Act (1997) |
2002 |
|
Communications Decency Act (1996) |
1997 |
|
Line Item Veto Act (1996) |
1998 |
|
"Welfare reform" bill (provision authorizing durational residency requirements) (1996) |
1999 |
|
Telecommunications Act (1996) |
2000 |
|
Restriction on appropriations for Legal Services Corporation (prohibiting challenges to existing welfare law) (1996) |
2001 |
|
Child Pornography Prevention Act (1996) |
2002 |
|
Violence Against Women Act (1994) |
2000 |
|
Brady Handgun Violence Prevention Act (1993) |
1997 |
|
Religious Freedom Restoration Act (1993) |
1997 |
|
Trademark Remedy Clarification Act (1992) |
1999 |
|
Coal Industry Retiree Health Benefit Act (1992) |
1998 |
|
Patent and Plant Variety Remedy Clarification Act (1992) |
1999 |
|
Federal Deposit Insurance Corporation Improvement Act (1991) |
1995 |
|
Gun Free School Zones Act (1990) |
1995 |
|
Americans with Disabilities Act (1990) |
2001 |
|
Mushroom Promotion, Research and Consumer Information Act (1990) |
2001 |
|
Ethics in Government Act (1989) |
1995 |
|
Cable Television Consumer Protection and Competition Act (1992) |
1996 |
|
Flag Protection Act (1989) |
1990 |
|
Amendment to Communications Act of 1934 ('dial-a-porn' provision) (1988) |
1989 |
|
Amendment to Communications Act of 1934 (casino advertising provision) (1988) |
1999 |
|
Indian Gaming Regulatory Act (1988) |
1996 |
|
Money Laundering Control Act (1986) |
1998 |
|
Metropolitan Washington Airports Act (1986) |
1991 |
|
Harbor Maintenance Tax (1986) |
1998 |
|
Balanced Budget and Emergency Deficit Control Act (aka Gramm-Rudman-Hollings Act) (1985) |
1986 |
|
Low-Level Radioactive Waste Policy Amendments Act (1985) |
1992 |
| Bankruptcy Amendments and Federal Judgeship Act (1984) | 2011 |
|
Sentencing Reform Act (1984) |
2005 |
|
Indian Land Consolidation Act (1984) |
1997 |
|
Indian Land Consolidation Act (1983) |
1987 |
|
Social Security Amendments (1983) |
2001 |
|
Public Broadcasting Amendments Act (1981) |
1984 |
|
Rock Island Railroad Transition and Employment Act, as amended by Staggers Rail Act (1980) |
1982 |
|
FTC Improvements Act (1980) |
1983 |
|
Bankruptcy Act (1978) |
1982 |
|
Natural Gas Policy Act (1978) |
1983 |
|
Federal Election Campaign Act (corporate expenditure provision) (1976) |
1986 |
|
Federal Election Campaign Act (party expenditure provision) (1976) |
1996 |
|
Copyright Act (1976) |
1998 |
|
Fair Labor Standards Amendments (1974) |
1999 |
|
Amendments to Age Discrimination in Employment Act of 1967 (1974) |
2000 |
|
Presidential Election Campaign Fund Act (1971) |
1985 |
|
Omnibus Crime Control and Safe Streets Act (police interrogations provision) (1968) |
2000 |
|
Omnibus Crime Control and Safe Streets Act (phone tapping provision) (1968) |
2001 |
|
Restrictions on reproduction of U.S. currency (1958) |
1984 |
|
Internal Revenue Code Bill (tax on insurance premiums paid to foreign insurers) (1954) |
1996 |
|
Immigration and Nationality Act (legislative veto provision) (1952) |
1983 |
|
Regulation of public speech on Supreme Court grounds (1949) |
1983 |
|
D.C. regulation of public speech near foreign embassies (1938) |
1988 |
|
Federal Alcohol Administration Act (1935) |
1995 |
|
Comstock Act (1873) |
1983 |
Last updated: June 27, 2011.