Judicial Review and Coordinate Construction of The Constitution

Judicial Review and Coordinate
Construction of the Constitution *

James Meernik, University of North Texas
Joseph Ignagni, University of Texas at Arlington
Theory: A Congress-centered model of coordinate construction of the Constitution

is proposed to predict when legislation, that would reverse a decision of the Su-
preme Court, is brought to a vote in Congress.
Hypotheses: Decision reversal of Supreme Court cases striking down law as uncon-
stitutional are a function of federal power concerns, presidential position, the type
of law struck down, public opinion, and interest group pressure.
Methods: A two-stage model suggested by Achen (1987) for modeling two interre-
lated, dichotomous outcomes is used.
Results: We find that Congress often does reverse Supreme Court rulings and that
public opinion, the position of the president, federal power concerns, and the type
of law struck down have the greatest effect on the likelihood that reversal legislation
will come to a vote in Congress and will be passed.
When Chief Justice John Marshall asserted the principle of judicial

review in Marbury v. Madison (1803) he began a national debate over the
proper and desirable role of the Supreme Court in the interpretation of the
United States Constitution. Does or should the power of judicial review
the power to examine all manner of law in order to determine its compatibil-
ity with the dictates of the Constitution-make the Supreme Court the ulti-
mate and final interpreter of the Constitution? Do or should the other
branches of the federal government, the states, and the people have coordi-
nate power to construct meaning out of the general guidelines of that docu-
ment? A growing body of both normative and theoretical work has tackled
this subject. In answer to the question, "is" judicial review the final step
in the national political process, most scholars acknowledge that the su-
premacy of the Supreme Court is widely believed to be true (e.g., Agresto
1984; Berger 1977; Black 1960; Bork 1990; Dworkin 1984; Jacobsohn
1986; Segal and Spaeth 1993; Wolfe 1986). Several of these same scholars
and others as well argue, however, that the decisions of the Supreme Court
*Replication Note: Data will be made available by the authors on request within one year
of publication.
The authors would like to thank the following for their invaluable research assistance: Linda
Camp-Keith, Jonathan Rapkin, Kellee Rayburn, Gabrielle Schmidt, Jerry Shepard, Larry
Slayton, and William Ward. Also, Thomas Marshall, Mike Moore, and Reginald Sheehan
provided helpful comments on earlier drafts of this paper.
American Journal of Political Science, Vol. 41, No. 2, April 1997, Pp. 447-467
? 1997 by the Board of Regents of the University of Wisconsin System
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All use subject to https://about.jstor.org/terms
448 James Meernik and Joseph Ignagni
do not have to be final and that other political actors have only to use the
political process to assert their own interpretation of the Constitution. Yet,
despite a plethora of theoretical and normative essays on this subject little
empirical research has determined if and when the Court is final or coordi-
nate in the interpretation of the Constitution.
Based on various works on judicial review and judicial finality, we
develop a model of coordinate construction, a process whereby governmen-
tal and nongovernment actors seek to realize their interpretation of the Con-
stitution as equals of the Supreme Court. We attempt to infuse our model
with both the evidence of prior theoretical and empirical research in this
area and the insight of scholars who have constructed normative models
of coordinate construction. The model is used to explain what might cause
political actors to react when the Supreme Court rules a law unconstitu-
tional. We attempt to predict first, when the Congress will attempt to pass
legislation reversing such Court decisions and second, when such legisla-
tion will succeed in passing. We test our hypotheses on a data set of 569
instances where the Supreme Court ruled all or part of some federal law,
state law, or executive order unconstitutional. A two-stage model suggested
by Achen (1987) for modeling two interrelated, dichotomous outcomes is
used. We conclude by using our findings to shed new light on the normative
and empirical issues surrounding the role of the Court and other political
actors in the interpretation of the United States Constitution and the system
of checks and balances.
Judicial Review and Judicial Finality

Judicial review has occupied a studied and preeminent place in the
American constitutional faith (Levinson 1988). Some have argued that judi-
cial review protects minority civil rights and liberties (e.g., Barnum 1993;
Burt 1992; Choper 1980; Smith 1988); others claim that it allows an other-
wise relatively powerless Court an important check against possible ex-
cesses by other institutions (e.g., Barnum 1993; Epstein and Walker 1992;
Murphy and Pritchett 1986; Segal and Spaeth 1993; Spaeth 1979); while
still other scholars believe that judicial review performs a legitimacy con-
ferring or educational function for the government (e.g., Bickel 1962; Black
1960; Dahl 1957; Rostow 1952; although see Adamany 1973; Marshall
1989 for a refutation of this thesis).
Yet as long as judicial review has been practiced by the Supreme Court,
scholars and politicians alike have inveighed against its usurpation of legis-
lative power and antimajoritarian quality. The original Marbury v. Madison
(1803) decision, Dred Scott v. Sandford (1857), the anti-New Deal deci-
sions of the Hughes Court and the civil rights and liberties decisions of the
Warren and Burger Courts have all generated tremendous controversy and
JUDICIAL REVIEW AND THE CONSTITUTION 449
attacks on the Supreme Court's power. Recently, a great deal of normative

inquiry examined the need for and wisdom of judicial review, inspired in
large part by the perceived judicial activism of recent years. According to
Agresto (1984, 117) the finality of judicial review, ". . . has been a major
ingredient in the growth of judicial power and the erosion of the principles
of popular sovereignty, constitutionalism and interdepartmental checks."
Such charges against the Court have inspired a bevy of proposals and
reinterpretations of judicial review, variously labeled, "departmentalism,"
"provisional review," or "coordinate construction" to provide an ex-
panded role for other political actors in the interpretation of the United
States Constitution. Many scholars view Court decisions as beginning a
political dialogue among the branches of government and the public, each
of whom has the right to interpret the Constitution (Agresto 1984; Burgess
1991; Choper 1980; Dimond 1989; Macedo 1990). Such a process, they
argue, ought to continue until something resembling a national consensus
evolves either supporting or challenging a Court ruling. Not surprisingly,
however, many academics and politicians look with horror on schemes that
would question the finality of Supreme Court decisions. Emerson (1982,
142) argues that allowing the legislature to challenge judicial supremacy
would, ". . . completely undermine the historic powers of the Court to
protect our system of individual rights against legislative encroachment."
For many, any challenge to the finality of judicial review is an assault
against political and other minorities.
Yet, this debate over the constitutionality and benefits of "coordinate
construction" would appear to be moot. Most public law scholars either
believe themselves that judicial review is typically the final stage in the
struggle to interpret the Constitution, or acknowledge that while this may
not be true, it is widely believed to be so by the public, the media, and
government officials (Black 1960). The Court itself has deliberately encour-
aged belief in its supremacy and finality in landmark cases (Burgess 1991).
Many scholars maintain that when the Court strikes down a law as unconsti-
tutional, the aggrieved parties have few remedies to pursue short of re-
stricting the Court's appellate jurisdiction or amending the Constitution
(Bickel 1962; Black 1960; Snowiss 1990).
In fact, however, many scholars argue that it is constitutionally permis-
sible for the Congress to pass statutory legislation that would modify the
impact of a Supreme Court ruling striking down federal or state legislation
(Agresto 1984; Macedo 1990). Dahl (1957) argued that reversals do oc-
cur-mostly over time as a result of changes in the Court's composition
and its unwillingness or inability to hold off the lawmaking majority. In
addition, ample empirical evidence finds Congress has not been hesitant to
reverse Supreme Court decisions in statutory construction cases (Eskridge
1991; Henschen 1983; Keynes and Miller 1989; Paschal 1991; Solimine
and Walker 1992).
We believe that it is both desirable and possible to bring together the
arguments and findings of all these scholars to develop an empirical model
of coordinate construction and to explain if and when Supreme Court deci-
sions ruling some law or order unconstitutional are reversed. We define
coordinate construction as the process by which governmental and nongov-
ernmental actors seek to realize their interpretation of the constitutionality
of legislation and law. There is a need to synthesize both the normative
and empirical work for several reasons. First, we believe the question of
judicial finality is of interest to a broad range of scholars because it speaks
to the role of checks and balances and the separation of powers in the
federal government, the meaning of the Constitution, and the prospects for
majoritarian rule. The empirical evidence we analyze regarding judicial
finality should help us gauge the extent of the Supreme Court's power and
the prospects for coordinate construction. Second, we believe that it is pos-
sible to draw upon the insights and recommendations of scholars working
in the normative tradition to create a more realistic model of coordinate
construction (Smith 1988). These essays might suggest possible explana-
tions for reversals of judicial review (e.g., the Choper 1980 and Dimond
1989 argument that Congress has the power to reverse Court rulings strik-
ing down state laws). Third, there is also a need to bring together the theo-
retical and empirical work on reversals of judicial review to develop and
test a more comprehensive model of the coordinate construction process.
Such is the task we hope to accomplish with this paper.
A Congress-Centered Model of Coordinate Construction

The decisions of the Supreme Court may be modified or reversed by
a number of methods. Both Scigliano (1971) and Wolfe (1986) argue that
coordinate construction necessarily favors the executive branch because of
its veto and enforcement powers and dominance in foreign policy. These
powers, however, do not directly lead to reinterpretations of specific deci-
sions. Rather, the president's influence over the Court is fairly indirect and
must occur over time (Agresto 1984). Most other scholars give Congress
primary responsibility for engaging the Supreme Court in a dialogue over
the meaning of the Constitution (e.g., Agresto 1984; Burgess 1991; Choper
1980; Dimond 1989). They find justification for such a role in the Constitu-
tion, which gives the Congress broad powers to uphold the Constitution,
and assert federal right and national standards over state authority in both
article I of the Constitution and the Fourteenth Amendment. Coordinate
construction has not only been supported by members of Congress, it has
been defended by presidents (Jefferson, Madison, Jackson, Lincoln,
Reagan) and even members of the Court as a constitutionally permissible

practice.'
More specifically, the Congress can propose or pass what Stumpf
(1965, 382) terms, "decision reversal legislation," intended ".... to modify
the legal result or impact, or perceived legal result or impact of a specific
Supreme Court decision, or decisions." Congress may rewrite legislation
to pass judicial scrutiny; it may rewrite legislation to locate the sources of
its power in alternate passages of the Constitution; and it may rely on alter-
native readings of earlier Court decisions to justify its powers (e.g., civil
rights laws which have, in effect, overruled the Court's 1883 interpretation
of the Fourteenth Amendment). Because decision reversal legislation aims
at reinterpreting specific cases of judicial review, we argue that the power
to shape legislation gives Congress primary responsibility for initiating co-
ordinate construction (Agresto 1984; Burgess 1991; Dimond 1989). We do
not assume that congressional power is supreme in coordinate construction,
rather it is necessary and sufficient to reverse a Court ruling. The Congress
must introduce decision reversal legislation, and it can override a presiden-
tial veto of such legislation. Therefore, we contend that political actors
seeking to reverse instances where the Court rules some law or order uncon-
stitutional must direct their efforts toward the legislature.
Given the Supreme Court issues a ruling of unconstitutionality, we ar-
gue that the Congress performs two essential functions in our scheme of
coordinate construction. First, it "represents" the views of its own mem-
bers and other political actors. Congress is the forum to register and express
the positions of its members, the public, interest groups, the states, and the
executive branch. Because its members are substantially motivated by the
drive for reelection, they give voice to the views of the general public,
special interest groups, and the interests of the states they represent (Arnold
1990; Fiorina 1981; Kingdon 1981; Mayhew 1974; Ripley 1983). We con-
tend that representatives and senators act as delegates of their constituents'
views on Supreme Court decisions that are particularly unpopular. The
Congress is also a forum for the president to have his views represented
by introducing a bill through a member or taking a position on legislation.
Finally, the Congress will necessarily represent its own institutional inter-
ests. Its members will generally wish to maintain a status at least as equal
in power as the other branches of the federal government and protect legis-
lation it views as necessary for furthering its policy ends.
'Fisher (1988, 245) quotes Justice White in his dissenting opinion in Welsh v. United
States (1970), ". . . this Court is not alone in being obliged to construe the Constitution in
the course of its work; nor does it approach having a monopoly on the wisdom and insight
appropriate to the task."
We argue that the second function of Congress in our coordinate con-

struction theory is to "validate" the policy preferences of those it repre-
sents by passing legislation when a majority of its members believe that a
Supreme Court ruling has truly thwarted majoritarian sentiment. A judicial
finding of unconstitutionality "invalidates" some statute by calling into
question the judgment of the political majority which directly or indirectly
designed the statute. While recognizing that not all instances of judicial
review are antimajoritarian (Agresto 1984; Marshall and Ignagni 1994),
when there is clearly expressed and substantial opposition to a Court ruling
from the actors listed above, we argue that members of Congress will act
as though majoritarian preferences had been thwarted and will reverse such
rulings.
Therefore, given a Supreme Court decision striking down law, we con-
ceptualize coordinate construction as a two-stage process. First, there is
a representation stage where decision reversal attempts may be made by
individual members of Congress representing their own and the views of
other political actors. Second, in a validation stage Congress may vote on
a piece of decision reversal legislation. Representation and validation are
similar, yet ultimately unique functions in coordinate construction, for
while there may be strong political incentives to represent the views of
those opposed to the Court, there are also considerable difficulties involved
in constructing a lawmaking majority in both chambers of Congress.
The Political Actors in Coordinate Construction
The Congress
First and foremost, members of Congress will look to protect their own
interests in coordinate construction. Congress is especially likely to resist
Supreme Court rulings when a decision curtails or expands legislative
power in opposition to members' wishes. The first type of scenario requires
little explanation. When the Court rules Congress has awarded itself uncon-
stitutional powers and violated the separat-ion of powers principle (e.g., the
legislative veto), the Congress may attempt to recapture its lost power. It
is also possible, however, that Congress may wish to devolve power onto
the states to give them discretion to enact policies that establish stricter or
looser laws than exist at the federal level. For example, in the 1950s mem-
bers of Congress sought to reverse Court rulings that held federal laws
regarding the civil liberties of suspected subversives preempted more strin-
gent state laws. These members wanted to give the states greater power to
restrict such individuals than the federal government exercised. Ultimately,
whether members of Congress wish to expand legislative power or disburse
it to other bodies, when the Supreme Court interferes with the distribution
of federal power, members are likely to initiate a decision reversal attempt,

and the Congress is likely to pass such legislation. Thus:
HYPOTHESIS 1A: Members of Congress will be more likely to attempt

to pass decision reversal legislation when a Supreme Court decision
affects the distribution of federal power.
HYPOTHESIS iB: Congress will be more likely to pass decision reversal

legislation when a Supreme Court decision affects the distribution of
federal power.2
The President
We argue that the executive, like the legislative branch, may perceive
its political and institutional interests threatened by the exercise of judicial
review and that Congress will have many incentives to take into account
the views of the executive branch. Often the solicitor general argues the
government's case before the Supreme Court, or files an amicus brief (and
generally is quite successful [e.g., Caplan 1987; Puro 1981; Segal 1988;
Tanenhaus 1960]). When the government loses a case, however, the presi-
dent may call upon his party's leaders to introduce legislation, or he may
provide electoral incentives to induce members to support his position. In-
deed, Scigliano argues, without presidential support, legislative efforts to
reverse the Court are usually doomed (1971, 202). In previous research
(Meernik and Ignagni 1995) we found that when the United States govern-
ment argues or files an amicus brief and loses a case before the Supreme
Court, the Congress is much more likely to reverse the Court's decision
(see also Segal 1991). Therefore:

to pass decision reversal legislation when the United States government
2To qualify as a Supreme Court ruling affecting the federal distribution of power, the
case had to meet at least one of the following criteria: 1) did the Court rule that a federal
statute violated the federal separation of powers principle, 2) did the Court issue a ruling
regarding federal election practices, or 3) did the Court declare that a state law "conflicted
with" federal law, was "preempted by" federal law, or was in violation of the supremacy
clause of the United States Constitution in a case where either the executive branch or a
member of Congress filed an amicus brief on behalf of the aggrieved state party(s). These
cases were selected because they concern the most important powers of the members and
institution of the Congress. These are the powers to determine how members are elected
and when the Congress is supreme over the other branches of government and the states.
For this information we relied on U.S. Supreme Court Reports. In 4.9% of the cases in the
attempt model, federal powers were involved (28 out of 569). In 16.8% of the cases in the
reversal passage model, federal powers were involved (21 out of 125).
argues and loses a case or files an amicus brief for a losing plaintiff
in a Supreme Court decision.
HYPOTHESIS 2B: Congress will be more likely to pass decision reversal

legislation when the United States government argues and loses a case
or files an amicus brief on behalf of a losing plaintiff in a Supreme
Court decision, or the president publicly supports decision reversal leg-
islation.3
The States
There are substantial theoretical reasons and normative justifications
to expect that the Congress will be particularly likely to respond to Supreme
Court decisions overturning state laws. First, state laws are more likely to
involve hotly contested political issues, such as abortion, school prayer,
and civil rights of considerable interest to the states and members of Con-
gress (Lively 1990). Members of Congress may appeal to national groups
involved in such issues or to the rights and powers of the states by working
to reverse the effects of a Court decision. Second, a number of normative
studies argue reversals of judicial review involving state laws are constitu-
tionally possible and desirable (Choper 1980, 131, Dimond 1989, 61). Thus,
we would expect there to be substantial political incentives for members
of Congress to represent the interests of the various states when the Court
has ruled against them. Therefore:

to pass decision reversal legislation when the Supreme Court rules a
state law unconstitutional.
legislation when the Supreme Court rules a state law unconstitutional.4
3To determine when the executive branch either argued a case before the Court and
lost or filed an amicus brief on behalf of a losing plaintiff, we examined the U.S. Supreme
Court Reports. To determine when the president publicly supported decision reversal legisla-
tion, we consulted the Congressional Quarterly Almanac. It is not possible to determine the
president's position on most issues that do not go beyond the Court's ruling. Therefore, it
is impossible to use this information when predicting reversal attempts. In 17% of the cases
in the attempt model, the president was on the losing end of a Supreme Court decision (97
out of 569). In 37.6% of the cases in the reversal passage model, the president's position
was either opposed to the Court's or in favor of passage of reversal legislation (47 out of
125).
4We use U.S. Supreme Court Reports to determine when a Court decision affected state
law(s). In 87.3% of the cases in the attempt model, a state law was at issue (497 out of
569). In 80% of the cases in the reversal passage model, a state law was at issue (100 out
of 125). While some may see a contradiction between this argument and our hypothesis
regarding the importance of federal power cases, we believe that in general, there are a wider
variety of salient issues involved in state law cases. In previous research we also tested to
The Public
As the preeminent representative institution in the federal government,
the most natural constituency members of Congress represent is the public.
For most of the public, however, the vast majority of Supreme Court deci-
sions are of little consequence (e.g., Casey 1976; Dolbeare 1967; Kessel
1966); although when the public does take notice, the effects are usually
quite powerful. We argue that the depth of public aversion to a Supreme
Court decision will strongly influence the extent of the Congress's response
to it. When there is no evidence of public awareness of a decision, few if
any electoral rewards can be gained from attempting to reverse the Court
decision. Yet, when there is evidence of public awareness of the Court's
decision and some division of opinion regarding it, a constituency exists
for some sort of governmental response. Ultimately, when a majority of
the public is aware of and opposed to a Court decision, the pressure to meet
the demands of majoritarian preferences may be so great that the probability
of reversing a Court decision increases dramatically. To measure public
awareness and sentiment, we rely on polling data from the Gallup organiza-
tion. First, we assume that an absence of a poll concerning public opinion
on an issue involved in a Supreme Court case indicates a lack of issue
salience and public awareness of the Court's action. Second, we argue that
a polling item regarding an issue before the Supreme Court where there is
some division of opinion is evidence of public awareness and some opposi-
tion to the Court's decision. Third, we argue that when a majority of those
polled oppose a Court decision, there is substantial reason to believe a ma-
jority of the public is opposed to the decisions. Therefore:

to pass decision reversal legislation when there is evidence of public
opposition to a Court ruling.

legislation when there is evidence a majority of the public is opposed
to a Court ruling.5
determine if cases involving multiple states were more likely to result in congressional rever-
sal than those pertaining to a single state (Meernik and Ignagni 1995). In this analysis we
include the number of states which filed amicus curiae in our interest group variables.
'Our public opinion variable for the No Attempt/Attempt model takes on a value of
"1" if there is an opinion poll concerning an issue before the Court within a three year
period before or after a Supreme Court decision. Our public opinion variable for the No
Reversal/Reversal model takes on a value of "1" if at least 50% of the public within a
three year period before or after a Supreme Court decision is either opposed to the decision
handed down by the Court or is in favor of congressional action to overturn or reinterpret
the Court decision or at least 50% of those polled expressed an opinion at variance with
the views expressed or soon to be expressed by the Court, and "0" otherwise. We include
Interest Groups
The final political force that is felt in the coordinate construction pro-
cess is the influence of special interest groups. Groups or individuals di-
rectly affected by the outcome of Supreme Court decisions often have a
greater stake than other actors in the eventual outcome of a legislative re-
sponse (Baum 1992; Johnson and Canon 1984; Murphy 1962; Nagel 1969;
Solimine and Walker 1992) and are likely to make their voices heard in a
far more concerted fashion than the general public. Members of Congress
are often dependent upon these groups for electoral support and legislative
assistance, and may sympathize with their aims. We find in our own re-
search that the more amicus curiae that are filed by groups in opposition
to the Court ruling, the more likely the Congress is to act (Ignagni and
Meemik 1994). Therefore:

to pass decision reversal legislation the greater the absolute number of
groups which file an amicus brief in favor of the constitutionality of
a law or order.

legislation the greater the number of groups which file an amicus brief
in favor of the constitutionality of a law or order vs. the number of
groups filing briefs denying the constitutionality of a law or order.6
only those Gallup polls that either precede a congressional attempt at reversing a Court
decision or polls that are taken within the time frame where there was no congressional
reaction. In 16.5% of the cases in the attempt model, there is evidence of public opposition
(94 out of 569). In 27.2% of the cases in the reversal passage model, a majority of the polled
public was opposed to the Court (34 out of 125).
To determine if there was a match between the substance of a Supreme Court decision
and a polling item, we first used data from Marshall (1989). We then undertook to determine
if there were other cases Marshall might have excluded. For this enterprise three coders
were employed. At least two coders were responsible for searching for polling information
on each Supreme Court decision in our data set. Only when two coders both found evidence
of a match was the polling data used.
6In the No Attempt/Attempt model, we count the number of briefs that are in favor of
Court affirmance of the constitutionality of the law or order. In the No Reversal/Reversal
model, we count the number of briefs that are in favor of Court affirmance of the constitution-
ality of the law or order and subtract the number of those that oppose Court affirmance of
constitutionality. This information was obtained from the U.S. Supreme Court Reports. In
18.5% of the cases in the attempt model, at least one interest group filed an amicus brief
in favor of affirmance (105 out of 569). In 28.8% of the cases in the reversal passage model,
at least one interest group filed an amicus brief in favor of affirmance (36 out of 125).
Defining and Measuring Decision Reversal Legislation

To measure cases of judicial review, we include all instances from
1954, with the beginning of the Warren Court, through 1990 in which the
Supreme Court declared all or part of some federal law, state law, or execu-
tive order unconstitutional. These 569 cases form the basic unit of analysis
for our study. We found 497 state laws, 65 federal laws, and 7 executive
orders declared unconstitutional during this period.7 We then looked for
evidence of an attempt by Congress to reverse the outcome of these cases.
We treat all bills or proposed constitutional amendments that aimed to re-
verse a Court ruling striking down a law or order as unconstitutional and
that were the subject of at least one floor vote in either the House of Repre-
sentatives or the Senate as constituting decision reversal legislation ac-
cording to the Stumpf definition cited above.8 Using this as our criterion
enables us to exclude superficial attempts at mollifying public opinion or
personal crusades that were not expected to be serious challenges to Court
power or decisions. It allows us to include, however, serious efforts that
attempted to shape Court behavior, but which like most pieces of proposed
legislation, did not become law.9 We define a successful case of decision
7The 65 federal cases were drawn from Abraham (1986) for the years 1954-85, and
Westlaw (a computerized legal data base), and Congressional Quarterly Almanac for the
remaining years. The 497 cases involving state laws were found in The Constitution of the
United States of America: Analysis and Interpretation and its 1990 Supplement (Killian and
Beck 1987; Killian and Costello 1991). The remaining seven decisions involving executive
orders were identified by using Harold Spaeth's U.S. Supreme Court Judicial Data Base,
Westlaw, and by conducting a comprehensive search of the index of decision topics in each
volume of the U.S. Reports and U.S. Supreme Court Reports-Lawyers Edition 2d from
1954 to 1990. There were several executive orders that were declared unconstitutional at
the same time the Court struck down a federal statute. These are included as federal statutes.
We have left out local ordinances in this paper for two reasons. First, previous literature
(notably, Caldeira and McCrone 1992) has also systematically excluded such cases. Second,
in our examination of the data we find only one instance of the Congress responding to a
Court decision in this area. We also leave out most federal bureaucratic actions or rules the
Court strikes down.
8We also relied on Eskridge's definition of override legislation regarding statutory con-
struction cases. He writes that a congressional override of Court decisions ". . . includes a
statute that (1) completely overrules the holding of a. . . decision, just as a subsequent Court
would overrule an unsatisfactory precedent, (2) modifies the result of a decision in some
material way, such that the same case would have been decided differently; or (3) modifies
the consequences of the decision, such that the same case would have been decided in the
same way but subsequent cases would be decided differently (1991, 332).
9We believe this measure of reversal attempts does not conflict with our earlier discus-
sion of coordinate construction where we argued reversal attempts are made by individuals.
We argue that bills, before they become law, are the responsibility of individual members
who must guide them through the legislative process. It is only when the institution of Con-
gress votes on bills that they become the domain of the entire body.
reversal as occurring when both the House and Senate pass legislation that
reverses the effects of a Supreme Court decision.10
This information was obtained from the Congressional Quarterly Al-
manac and the Congressional Record. A team of 3-5 research assistants
examined these sources for instances in which a roll call vote was taken
that would modify a judicial review decision. To determine when legisla-
tion was designed to modify a Court decision we relied foremost on state-
ments made by members of Congress to the effect that legislation was in-
tended to reverse all or part of a decision. For example, accounts in the
Congressional Quarterly Almanac of attempts to pass Constitutional
Amendments allowing school prayer or banning busing contain numerous
statements of intent by members of Congress. In the vast majority of cases,
the intentions of the members are a matter of public record. If this informa-
tion was not available, we made use of transcripts and accounts of commit-
tee hearings, floor proceedings, and the bills themselves to determine if the
effect of the legislation would change or circumvent the effect of a Court
decision.
An examination of the frequency of reversal attempts and successes
reveals that contrary to popular and scholarly opinion, the Congress can
and does attempt to reverse Supreme Court rulings. Judicial review does
not appear to be equivalent to judicial finality. In the first stage of our
model of coordinate construction, representation, we find that the Congress
repeatedly voted to reinterpret the Constitution after a High Court ruling
of unconstitutionality. Although in 78% of the cases (444 out of 569) where
the Supreme Court ruled some federal law, state law, or executive order
unconstitutional, the Congress made no attempt to reverse its ruling; on
125 occasions, either the House or the Senate voted on legislation that
would modify such a ruling. While many scholars have argued in the past
that for all intents and purposes, judicial review is final (e.g., Agresto 1984;
Bickel 1962; Snowiss 1990), our results would seem to indicate that Con-
gress is willing to challenge the power of the High Court. In the second
stage of our model of coordinate construction, we find that in 33% of the
cases (41 out of 125) where the Congress did attempt to reverse the Court's
decision, it was successful in passing legislation. While, again, the numbers
are not overwhelming, they do indicate that Congress has reversed the judg-
"0If we consider success as the signing into law of decision reversal legislation by the
president, our results do not substantially change. There were only a handful of instances
in which both chambers passed legislation the president did not sign. We have also shown
it makes little difference whether one uses an ordinal scale to distinguish between different
gradations of legislative responses, or a simple dichotomy between the absence or presence
of a legislative attempt, or between success and failure (Meernik and Ignagni 1995).
ment of the Court through ordinary legislation (as well as constitutional

amendment). Coordinate construction or something akin to it is alive and
functioning in the United States government.
Methodology
To test the hypotheses outlined above, our statistical model must ex-
plain both attempts at reversing Supreme Court decisions and successful
reversals. Before estimating the model, the problem of selection bias must
be addressed. Such bias occurs when the inclusion of cases into a choice
set is determined by a previously occurring selection process. If potential
observations are excluded from the second, or substantive equation (i.e., the
model predicting reversal success) according to some nonrandom selection
process, selection bias is likely to result. As Berk (1983, 389) notes, when-
ever the substantive and selective models involve the same actors, and/or
the same physical location, and/or at about the same time, there are theoreti-
cal grounds for believing that selection bias exists. Such problems do exist
in this model.11
In this analysis, however, the problem of estimating selection bias is
compounded by the presence of a second binary choice set in the substan-
tive equation. The sample selection models described by Heckman (1976),
Berk (1983), and others refer to substantive equations with interval-level
endogenous variables where regression is the preferred method of estima-
tion. Fortunately, Achen (1987) demonstrates that there is a plausible alter-
native that can accommodate the dichotomous nature of both of the endoge-
nous variables. He outlines a two-equation procedure that employs a linear
probability model to estimate the selection equation and a nonlinear model
to estimate the substantive, outcome equation. These equations yield con-
sistent and unbiased coefficient estimates."2
"1By not controlling for selection bias in the second equation, the correlation between
the exogenous variables and the disturbance term may lead the researcher to attribute causal
effects to the exogenous variables that actually result from the error disturbances (Berk 1983,
388). This correlation may make variables that do not belong in the selection equation appear
to be significant in the substantive equation. Furthermore, the relationship between X and
Y may be either systematically underestimated or overestimated because the conditional
mean of the error term in the substantive equation is not included as an exogenous variable
(Heckman 1976, 478). The expected values of the error term are no longer zero and tend
to be correlated with the exogenous variables, yielding inconsistent estimators.
"2The first stage of the Achen procedure involves estimating the selection equation with
the -dichotomous endogenous variable by means of a linear probability model. Although
econometricians have documented several problems arising from using the linear probability
model, Achen argues that most are not serious enough to warrant the use of the Heckman
procedure on equations with two dichotomous dependent variables. It should be noted that
in the models, overestimations of the dependent variable are constrained to .99 and underesti-
mations to .01. These corrected estimates then become the predicted values. We use these
The two models predicting reversal attempts and reversal successes

may be represented in the following equations:
Y= Z bjCji + eli [1]
If Yli= 1
5
Y2i=E djCji + i + e2i [2]
where for Equation [1], Yli represents the outcome of the

Cji represents the independent variables, bj represents the
variables, and eli is the random error term. In the second e
sents the outcome of the reversal attempt, Cji represents
variables, dj represents the weights for these variables
selection bias term, and e2i is the second random error te
Analysis
The overall fit of both models is remarkably good. The adjusted R2 for
the first stage of the coordinate construction process, reversal attempts, is
.58. For the second stage of the model, the passage of reversal legislation,
the adjusted R2 is .53. The reversal attempt model correctly predicts 92%
of the cases, while the reversal passage model predicts 88% of the cases
correctly. The proportionate reduction of error statistic (PRE), is 64% for
both models, which tends to show that the models are performing quite
well given the skewed nature of the dependent variables (Hagle and Mitch-
ell 1992, 781).
In the first-stage model the most important factor is public opinion.
When there is a poll item related to a Court case, the probability of a rever-
sal attempt increases by 77%, controlling for other factors. In the second
stage we see that when a majority of those polled oppose a Court decision,
the probability of decision reversal legislation passing both chambers in-
creases by approximately 22%, controlling for other factors. These results
suggest that in the representation stage of coordinate construction, members
estimates to determine the predictive success of the models. Predicted values at or above
.50 are treated as a prediction of "1" and those below .50 are considered a prediction of
"O." Standard errors are generated by using the values, "generated by the estimators as
starting values for one round of Newton iteration in a numerical search for maximum likeli-
hood estimates" (Achen 1987, 137). SPSS was used in all the statistical analyses. Identifica-
tion of the model is achieved through the use of three variables in each equation which are
unique to those equations.
Table 1. Modeling Attempts to Reverse Judicial Review Decisions
Standard t- p
Variable Coefficient Error Statistic Value*
Federal Powers Issue .423 .063 6.64 .000

Presidential Opposition to Court .210 .057 3.63 .000
State Law .190 .058 3.26 .001
Public Awareness .773 .031 24.40 .000
Absolute Number of Special Interests .000 .003 .23 .817
Constant .058 .013 4.39 .000
N = 569.
Percentage Correctly Predicted = 92.1%.
Proportionate Reduction of Error = 64%.
Adjusted R2 = .58.
* - Using one-tailed tests.
of Congress are quite likely to give voice to public anger over controversial
Court decisions. The passage of legislation in Congress also appears to
increase when a majority of the public, as evidenced by polling data, is
opposed to the Court ruling. However, the effect of the public opinion vari-
able is noticeably less in the validation stage of coordinate construction.
In fact, the Congress may be fulfilling a useful function by allowing critics
of the Court a channel through which anger against the Court may be
vented, but which ultimately tends to protect the sanctity of most of the
Court's decisions.
In Table 1 we see that Court rulings, which affect the distribution of
Table 2. Modeling Passage of Decision Reversal Legislation
Standard t- p
Variable Coefficient Error Statistic Value*
Federal Powers Issue .113 .068 1.66 .048

Presidential Opposition to Court .895 .056 19.98 .000
State Law .175 .080 2.18 .014
Majority of Public Opposed .225 .097 2.31 .010
Relative Number of Special Interests -.001 .007 -0.14 .444
Selection Bias Term -15.265 5.045 -3.02 .001
Constant -.254 .106 -2.39 .008
N = 125.
Percentage Correctly Predicted = 88.0%.
Proportionate Reduction of Error = 64%.
Adjusted R2 = .53.
* - Using one-tailed tests.
federal power, are quite likely to result in a decision reversal attempt. Con-
trolling for other factors, when the High Court issues a ruling affecting
federal powers, the probability of a reversal attempt increases by 42% ac-
cording to the model. The probability of a successful reversal attempt in-
creases by only 10%, and this variable is barely statistically significant in
the second equation. This latter finding is somewhat puzzling since one
might expect that such rulings would provoke a stronger reaction from Con-
gress than most other instances of judicial review. One possible interpreta-
tion is that in cases where the Court rules a state law is preempted by federal
law, some individual members of Congress may wish to give the states
greater discretion and make an attempt to reverse the Court ruling. But,
because the stricter or looser laws such members desire do not exist at the
federal level, this may indicate it is not feasible to form a lawmaking major-
ity to pass legislation.
In both the first and second-stage models we find that when the presi-
dent, via the Justice Department, argues or files an amicus brief and loses
a case before the Court, or supports decision reversal legislation, the Con-
gress is more likely to attempt and actually succeed in enacting into law
such legislation. The model predicts that reversal attempts are 21% more
likely to occur, and successful reversals are 89% more likely to occur when
the executive, in effect, joins forces with the legislative branch. Once the
weight of the executive branch has been added to the side favoring checking
the Supreme Court, the balance of power appears to tip considerably.
Our hypotheses regarding the effect of the type of law or order struck
down are borne out in the models as well. In the first-stage model, the
Congress is significantly likely to reverse Court rulings involving state
laws. We expected that the generally more controversial state laws, like
those involving school prayer, abortion, and the death penalty would repre-
sent the types of high-profile cases with which the Congress would take
issue (Choper 1980; Dimond 1989). The first-stage model indicates that
the probability of a reversal attempt increases by 19%, controlling for other
factors, when a state law has been ruled unconstitutional. In the second
stage, the probability of successful reversal increases by 17%, with the
usual caveats. Only the hypothesized effects of the special interest variables
are not borne out in the analysis-the variable is statistically negligible
in both models. Alternative operationalizations of this variable yielded no
increase in either the size of the coefficient or the predictive accuracy of
the model.
Finally, the selection bias variable measures the conditional probability
of each case being excluded from the sample at risk (the decision-reversal
model). It indicates that as the probability that an attempt is made increases
(i.e., the probability of being included in the second equation), the probabil-
ity that the attempt will be successful increases as well. The selection bias
term is statistically significant. Essentially, this is telling us that there is
some reason to believe that the same underlying process that makes a rever-
sal attempt likely, makes a successful reversal probable as well. The two
functions we argue Congress performs in coordinate construction, represen-
tation and validation, appear to be systematically related and should be
analyzed together. Given the differing operationalizations of the variables
in the two models and the slightly different results obtained across the two
equations, it is important to emphasize that the political processes which
generate attempts and actual reversals are similar, but not identical.
Conclusions
As evidenced by the high level of predictive accuracy of the two-stage
model and the statistical significance of most of the parameters, we believe
we have helped develop a parsimonious and compelling model of responses
to judicial review. We correctly predict 92% of the cases in the reversal
attempt model and 88% of the cases in the reversal legislation passage
model. We find that when there is evidence of public opposition to Court
rulings, when Court rulings involve state laws, when the executive branch
is opposed to a Court ruling, and when the issue involves federal power,
reversal attempts and successful reversals are more likely.
Our results show that while on most occasions the Congress does not
attempt to reverse instances of judicial review, there have been recurring
instances of coordinate construction. Attempts at reversals and successful
reversals do occur, but they are not the norm. It may be that many cases
of judicial review involve minor issues which do not concern the Congress
(Dahl 1957). It may be that members of Congress feel compelled to react
to judicial review only when the Court has drawn down its political capital
(Choper 1980). There are many possible explanations as to why the Con-
gress does not always engage in coordinate construction. Still, attempting
to reverse the judgment of the Court 22% of the time and actually reversing
its rulings 33% of the time, given an attempt, is quite remarkable in light
of the record of scholarly acceptance of the judicial finality thesis. Thus,
we would agree with Dahl that determined (and we would add, united)
majorities can be quite effective in reversing Court decisions.
If one accepts our finding that other political actors do challenge the
Court from time to time, its implications are open to diverse interpretations.
Some scholars would undoubtedly applaud such actions as evidence that
the Court's powers are not going unchecked (Agresto 1984; Burgess 1991;
Dimond 1989). Others might find the idea of the Congress, seized by popu-
lar passions, overturning the reasoned judgments of the High Court a dan-
gerous threat to civil liberties and rights (Berger 1977; Dworkin 1984;
Lively 1990). Some argue that the public and the Congress are not "compe-
tent" in constitutional interpretation, while others believe that successful
attacks on the Court will encourage more challenges to the Court and an
erosion of its power. Interestingly, while public opinion has a strong effect
on the likelihood of a congressional response, its effect is not nearly as
great on the actual success of such responses. It may be that the Congress
represents public opinion as a democratic institution should, but it also safe-
guards constitutional interests against the desires of the moment (e.g., Fed-
eralist #10).
We would ultimately interpret these results as providing significant evi-
dence that the constitutional system of checks and balances is keeping the
Supreme Court from invariably dominating the other branches through the
use of judicial review. This is not unlike what most of the Founding Fathers
desired-a political system in which no branch would reign supreme over
the others, and no act would be final and irrevocable. Judicial review is not
equivalent to judicial finality; the Court is not the Constitution. Whenever
judicial review significantly infringes on majoritarian views as we have
defined them, the Congress often reacts. But, judicial review mostly is final.
Certainly we would agree with Fisher (1988, 8) that, "Judicial rulings rest
undisturbed only to the extent that Congress, the President, and the general
public find the decisions convincing, reasonable, and acceptable."
Manuscript submitted 14 June 1995.

Final manuscript received 26 January 1996.
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Judicial Review and Coordinate Construction of The Constitution

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Judicial Review and Coordinate Construction of The Constitution

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Judicial Review and Coordinate

Construction of the Constitution *

Theory: A Congress-centered model of coordinate construction of the Constitution

When Chief Justice John Marshall asserted the principle of judicial

Judicial Review and Judicial Finality

attacks on the Supreme Court's power. Recently, a great deal of normative

A Congress-Centered Model of Coordinate Construction

Reagan) and even members of the Court as a constitutionally permissible

We argue that the second function of Congress in our coordinate con-

The Political Actors in Coordinate Construction

of federal power, members are likely to initiate a decision reversal attempt,

HYPOTHESIS 1A: Members of Congress will be more likely to attempt

HYPOTHESIS iB: Congress will be more likely to pass decision reversal

HYPOTHESIS 2A: Members of Congress will be more likely to attempt

HYPOTHESIS 2B: Congress will be more likely to pass decision reversal

HYPOTHESIS 3A: Members of Congress will be more likely to attempt

HYPOTHESIS 4A: Members of Congress will be more likely to attempt

HYPOTHESIS 4B: Congress will be more likely to pass decision reversal

HYPOTHESIS 5A: Members of Congress will be more likely to attempt

HYPOTHESIS 5B: Congress will be more likely to pass decision reversal

Defining and Measuring Decision Reversal Legislation

ment of the Court through ordinary legislation (as well as constitutional

The two models predicting reversal attempts and reversal successes

Y= Z bjCji + eli [1]

Y2i=E djCji + i + e2i [2]

where for Equation [1], Yli represents the outcome of the

Table 1. Modeling Attempts to Reverse Judicial Review Decisions

Federal Powers Issue .423 .063 6.64 .000

Table 2. Modeling Passage of Decision Reversal Legislation

Federal Powers Issue .113 .068 1.66 .048

Manuscript submitted 14 June 1995.

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