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KEEP ON KEEPIN ON? RETHINKING THE CONCEPTUALIZATION AND OPERATIONALIZATION OF JUDICIAL REVIEW J. Mitchell Pickerill and Artemus Ward Department of Political Science Northern Illinois University DeKalb, IL USA Paper prepared for the Annual Meeting of the Law & Society Association, June 2012, Honolulu, Hawaii.
Citizens United v. Federal Election Commission (2010) • The U.S. Supreme Court issued a broad decision striking down sections of the McCain-Feingold campaign-finance law. • Writing for a five-justice majority, Justice Anthony Kennedy ruled that the statute’s prohibition on political advertising in the run-up to elections by corporations and unions was an unconstitutional restriction of political speech. • Using broad language, Kennedy wrote: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
Citizens United v. Federal Election Commission (2010) • Yet at their initial conference vote on the case the same five-justice majority voted far more narrowly. • Instead of declaring the campaign limits unconstitutional, the majority said that the law did not apply to the specific communication in question—in this case a feature-length documentary about Hillary Clinton that was to be shown on cable and satellite television. • Chief Justice John Roberts assigned the majority opinion to himself, drafted it, and circulated it to his colleagues. • Justice Kennedy was not satisfied with Roberts’ narrow, as-applied analysis and Kennedy circulated his own concurrence. • He explained that the Court should have issued a broader ruling, not only declaring McCain-Feingold’s restrictions unconstitutional but also questioning and even overturning prior Supreme Court decisions that allowed restrictions on corporate giving. • Kennedy’s broad concurrence gained adherents and Roberts withdrew his opinion and supported Kennedy’s as the opinion of the Court.
Citizens United v. Federal Election Commission (2010) • Ultimately, Kennedy’s opinion became the law of the land and transformed Citizens United from what would have been a relatively minor as-applied, statutory campaign finance decision into a landmark First Amendment case that opened the door for greater involvement from corporations in political elections. • To be sure there is a world of difference between Roberts’ as-applied opinion and Kennedy’s constitutional one. • Yet in both scenarios Citizens United won the case and a Supreme Court majority supported the free-speech position over government restrictions. • But classifying each decision as simply pro-free-speech misses important distinctions between relatively narrow statutory rulings and broad constitutional pronouncements.
Conceptualizing Judicial Review • In almost all studies of judicial decision making, judicial review has been conceptualized as a dichotomous—uphold or strike down—choice. • The Supreme Court Database allows researchers to use this measure (combining “uncon” and “auth_dec” variables). • Scholars have used it to find that ideology influences the decision to strike or uphold (Segal and Spaeth 2002; Sala and Spriggs 2004; Keck 2007). • We suggest that the dichotomous coding scheme has resulted in a situation where legal and institutional factors have been deemphasized in favor of ideology.
As-Applied v. On Face • Despite the preoccupation with dichotomizing judicial review, some scholars have discussed a more sophisticated conceptualization—namely a distinction between striking down legislation on its face or as applied. • Normative theorists have extolled the “passive virtues” of narrow rulings as deferential to legislative majorities (e.g. Bickel 1961). • Empirical work has found: • the justices first decide to strike or uphold and then decide whether to do so as applied or on face (Lindquist and Corley 2011); • Congress is more likely to amend legislation when the Court strikes down on face (Pickerill 2004).
Operationalizing Judicial Review • We propose a new way to operationalize judicial review. • Our nuanced measure considers both narrow and broad variants of upholding or striking behavior. • We identify five distinct categories: • Uphold Broadly • Uphold Narrowly • Strike Down As Applied • Strike Down On Face Narrowly • Strike Down On Face Broadly
CODING AND MEASURING JUDICIAL REVIEW: ILLUSTRATIVE CASES • We coded 10 Supreme Court decisions that illustrate our judicial review typology. • While we are primarily concerned with majority opinions, we also coded the separate opinions in each case and the voting behavior of each justice who participated.
Table 6. Individual Justice Votes: Milavetz, Gallop & Milalvetz v. U.S. (2010)
Conclusion: Implications • As the above examples illustrate, judicial review is a more complex concept than is captured by a dichotomous variable. • Future research can explore: • whether ideologically moderate justices uphold or strike down narrowly or as applied; and whether ideologically extreme justices uphold or strike down broadly; • whether there is a relationship between the political regime and the type of decision (extreme v. narrow); • whether congressional responses are dependent on the type of decision.