In Why Does the Supreme Court Uphold so Many Laws?, the authors, Ben Johnson (Princeton--Politics) and Keith Whittington (Princeton--Politics), empirically explore the Supreme Court's judicial review practices regarding its discretionary review authority. As the paper notes, "Scholars spend a lot of time considering the legitimacy and implications of the Supreme Court striking down federal laws by use of judicial review. Similarly, there is a large literature focusing on the Court’s power and obligation to manage the federal judiciary through its certiorari powers over its own docket and its ability to reverse lower courts. However, there is almost no work that examines the interplay of the Court’s judicial review powers and its managerial authority."
Exploiting the Judicial Review of Congress (JRC) database, this paper brings much-needed data to prevailing competing theories. The JRC database is helpful in that it "identifies cases decided by the U.S. Supreme Court that substantively review the constitutionality of provisions of federal statutes from the founding to the present. Significantly, the JRC database includes not only cases in which the Court found a federal statutory provision to be unconstitutional but also cases in which the Court upheld a statutory provision against constitutional challenge.”
What the paper finds surprises: "Our examination of these data reveal that the category of cases we call the uphold-affirm set---where the lower court upholds a statute and the Court affirms---is the plurality category among judicial review cases. This is surprising not only because this category is completely incompatible with current theories of judicial review and certiorari, but also it shows that the Court, which usually reverses lower courts, deviates from its general practice when it exercises its judicial review powers where it tends to affirm.” Given the findings, the authors explore why "the U.S. Supreme Court taken and affirmed so many decisions that upheld so many laws against constitutional challenge."
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