The Influence of Congressional Preferences on Legislative Overrides of Supreme Court Decisions

Studies of Court–Congress relations assume that Congress overrides Court decisions based on legislative preferences, but no empirical evidence supports this claim. Our first goal is to show that Congress is more likely to pass override legislation the further ideologically removed a decision is from pivotal legislative actors. Second, we seek to determine whether Congress rationally anticipates Court rejection of override legislation, avoiding legislation when the current Court is likely to strike it down. Third, most studies argue that Congress only overrides statutory decisions. We contend that Congress has an incentive to override all Court decisions with which it disagrees, regardless of their legal basis. Using data on congressional overrides of Supreme Court decisions between 1946 and 1990, we show that Congress overrides Court decisions with which it ideologically disagrees, is not less likely to override when it anticipates that the Court will reject override legislation, and acts on preferences regardless of the legal basis of a decision. We therefore empirically substantiate a core part of separation‐of‐powers models of Court–Congress relations, as well as speak to the relative power of Congress and the Court on the ultimate content of policy.     

Explaining the Incidence and Timing of Congressional Responses to the U.S. Supreme Court

Sparked by interest in game‐theoretic representations of the separation of powers, empirical work examining congressional overrides of Supreme Court statutory decisions has burgeoned in recent years. Much of this work has been hampered, however, by the relative rarity of such events; as has long been noted, congressional attention to the Court is limited, and most Court decisions represent the last word on statutory interpretation. With this fact foremost in our minds, we examine empirically a number of theories regarding such reversals. By adopting an approach that allows us to separate the factors that lead to the event itself (that is, the presence or absence of an override in a particular case) from those that influence the timing of the event, we find that case‐specific factors are an important influence in the incidence of overrides, whereas Congress‐ and Court‐specific political influences dominate the timing at which those overrides occur. By separating the incidence and timing of overrides, our study yields a more accurate and nuanced understanding of this aspect of the separation‐of‐powers system.     

Congressional Attacks on the Supreme Court: A Mechanism to Maintain,Build, and Consolidate

Reexamination and reinterpretation of the “mature” (1955–1984) New Deal era of congressional attacks on the Supreme Court reveals a new hypothesis: that Court‐curbing efforts played a previously unrecognized role in party system development. Court rulings that create inter‐ and intraparty tension provide opportunities for various actors to attack the Court in an effort to solidify their faction's standing within national coalitional politics. Congressional attackers can use Court‐curbing resolutions and amendments in efforts to help them maintain coalitional cohesion, build a new majority, or consolidate previous victories. Thus, we might see legislative‐judicial relations as an unrecognized “site” of political development, where coalitional change is opposed and wrought.     

Legislative term limits in the United States

From 1990 to 1995 almost half of the American states adopted term limits for their congressional representatives and state legislatures. Although the US Supreme Court declared these laws unconstitutional as far as federal legislators are concerned, many states are proceeding to implement term limits for their own legislatures. This article examines the historical background to rotation in office, the political and constitutional issues involved, the term limits movement and its evolving strategies, congressional action on a proposed constitutional amendment and the impact on state legislatures. It concludes that the relative decline of the term limits movement since 1995 can be explained by a number of factors, including factionalism among its supporters and improving economic conditions in the country, but that it has made its own distinctive mark on American politics and its effects will be felt over the coming years.     

The Mask of Neutrality: Judicial Partisan Calculation and Legislative Redistricting

Do judges ruling on redistricting litigation increase electoral competition in congressional races while simultaneously drawing districts favoring their party's congressional candidates? I offer a novel theory of judicial partisan calculation, arguing that judges draw more competitive districts than legislatures or commissions, but that judge‐drawn districts favor the electoral interests of their copartisans. These claims are reconcilable because judges target districts held by contrapartisan legislators to maximize their copartisans’ fortunes. I find that Democratic judges draw competitive districts by adding Democratic voters to Republican‐held House constituencies. Court‐administered redistricting increases competitiveness, ostensibly due to judicial neutrality. This mask of neutrality, however, conceals sophisticated partisan calculation.     

最高人民法院在合宪性审查中的现状、困境与出路——兼对我国《立法法》第99条第1款解释

我国《立法法》预设了最高人民法院提请全国人大常委会进行合宪性审查的路径。从现有裁判文书来看,最高人民法院在实践中并未遵循我国《立法法》所预设的路径,而是在绝大多数案件中回避了合宪性审查诉求,同时又在个别案件中进行了合宪性审查,陷入了完全回避与直接审查的两难困境。造成这种困境的原因在于,我国《立法法》对最高人民法院在合宪性审查中的权力基础、权力行使程序缺乏清晰的规定。对此,亟待通过法律解释进行明确和细化,否则最高人民法院将无章可循,无法贸然提请全国人大常委会进行合宪性审查。为了化解最高人民法院面对的这一困境,有必要对我国《立法法》第99条第1款进行解释,推导出该条款在授予最高人民法院提请审查权时,还隐含着另一项未被释明的权力即预审权,其共同构成最高人民法院在合宪性审查中的权力基础;同时,为了使预审权与提请审查权的行使制度化,有必要对其行使程序进行细化,建立起预审-提请审查机制。     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

Modeling Supreme Court Strategic Decision Making: The Congressional Constraint

This paper addresses the contradictory results obtained by Segal (1997) and Spiller and Gely (1992) concerning the impact of institutional constraints on the U.S. Supreme Court's decision making. By adapting the Spiller and Gely maximum likelihood model to the Segal dataset, we find support for the hypothesis that the Court adjusts its decisions to presidential and congressional preferences. Data from 1947 to 1992 indicate that the average probability of the Court being constrained has been approximately one‐third. Further, we show that the results obtained by Segal are the product of biases introduced by a misspecified econometric model. We also discuss how our estimation highlights the usefulness of Krehbiel's model of legislative decision making.     

Constitutional pluralism: Chronicle of a death foretold?

What remains of the idea of constitutional pluralism in the wake of the Euro‐crisis? According to the new anti‐pluralists, the recent OMT saga signals its demise, calling to an end the tense stalemate between the ECJ and the German Constitutional Court on the question of ultimate authority. With the ECJ's checkmate, OMT represents a new stage in the constitutionalisation of the European Union, towards a fully monist order. Since constitutional pluralism was an inherently unstable and undesirable compromise, that is both inevitable and to be welcomed. It is argued here that this is misguided in attending to the formal at the expense of the material dimension of constitutional development. The material perspective reveals a deeply dysfunctional constitutional dynamic, of which the judicial battle in OMT is merely a surface reflection. This dynamic now reaches a critical conjuncture, encapsulated in the debate over ‘Grexit’, and the material conflict between solidarity and austerity. Constitutional pluralism, in conclusion, may be an idea worth defending, but as a normative plea for the co‐existence of a horizontal plurality of constitutional orders. This requires radical constitutional re‐imagination of the European project.     

An Analysis of Policy‐Based Congressional Responses to the U.S. Supreme Court's Constitutional Decisions

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy‐based responses to the Supreme Court's constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court's legal holding and the relationship between the proposal and the public policy associated with the Court's decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court's decisions but is limited in its ability to overcome the Court's legal rules.     

Family‐Centered Practice in Adult Treatment Courts: What Can We Learn from the Family Treatment Court Best Practice Standards?

Estimates suggest that upwards of 50% of participants in adult treatment courts (ATC) are parents. Previous studies point to negative impacts of unmet parenting needs on substance use treatment and criminal justice outcomes, and that family‐centered practices such as parenting classes substantially reduce recidivism among ATC participants. Judges and team members interested in adopting family‐centered practices in their ATC program may be unsure where to begin. One recent source of information regarding evidence‐based, family‐centered practices in treatment court settings is the Family Treatment Court (FTC) Best Practice Standards. The FTC Standards suggest adopting a family‐centered mission, expanding partnerships with child‐ and family‐serving agencies, discussing parenting and family roles during hearings, implementing family‐centered case management, and considering the effect of therapeutic responses on children and families. Building on the ATC Standards, the flexibility inherent in voluntary court programs, and existing community partnerships creates a pathway toward family‐centered practice in criminal settings.     

Divided We Quarrel: The Politics of Congressional Investigations, 1947–2004

Are congressional committee investigations into alleged executive‐branch wrongdoing more common during periods of divided government? We analyze original data tracking congressional committee investigations into alleged fraud, waste, and abuse by the executive branch between 1947 and 2004. Countering David Mayhew's (1991) empirical finding, we show that divided government generates more and more‐intensive congressional investigations, but this relationship is contingent on partisan and temporal factors. Our findings shed new light on the shifting dynamic between partisan institutional politics and congressional oversight.     

Congressional Institutionalization: A Cross‐National Comparison

This article explains variations in levels of institutionalization across legislatures of the world. It construes institutionalization as an equilibrium outcome that emerges from beliefs and investments made by political actors. Drawing insights from work on US congressional institutionalization and congressional organization, and on comparative party system institutionalization, it provides an index to measure congressional institutionalization. Using this index, it explores the constitutional factors that affect levels of congressional institutionalization. The empirical results raise a warning with respect to building comparative implications from an excessive focus on one particular case.     

Congressional Constitutional Interpretation and the Courts: A Preliminary Inquiry into Legislative Attitudes, 1959–2001

Through theoretically informed inquiry into congressional attitudes toward the Constitution and the courts as well as survey research of two modem Congresses, this study considers the prospects and implications of a more salient legislative role in constitutional affairs. By analyzing survey responses from the 86th (1959–61) and 106th (1999–2001) Congresses, and the political context in which these views were formed, this essay explores the legislature's evolving conception of its role and capacities as a constitutional interpreter. Among other findings, Congress demonstrates a persistent and somewhat surprising interest in asserting an independent, distinctive constitutional voice, although it has somewhat conflicted and underdeveloped views about how to achieve this objective. While this essay points to significant barriers to fostering a coherent and forceful congressional presence in constitutional decision making, it also suggests institutional organizations and strategies that may be promising bases for promoting this goal.     

宪法解释主体论

宪法解释主体理论存有两种,即民主理论与自由宪政理论。本文对宪法的立法解释之是非与宪法的司法解释之是非作了分析说明,认为司法者而非立法者能更好地理解和解释宪法。重点对我国宪法解释的制度设计与理论之争及模式选择与建构进行了研究,认为在世界各国通行的三种模式中,立法解释模式与普通法院解释模式实际上被排除在了选择之外,惟一可行的模式就是欧洲模式:建立专门的宪法解释的法院或机构。     

The Genesis of the Austrian Model of Constitutional Review of Legislation

Abstract The European model of the constitutional review of legislation, characterized by the concentration of the constitutional review power in a single constitutional court, had its origin in the Austrian Federal Constitution of 1920. This is all the more remarkable when one considers that this Constitution established at the same time a parliamentary system of government in a fairly radical form. As the author explains, this “invention” of a constitutional court is attributable to two factors. One factor is the federal aspect. The Court was conceived by the framers of the Austrian Federal Constitution of 1920 as an umpire between federal legislation and the legislation of the states or Länder. In this respect it was meant as a substitute for the principle of the priority of federal law over state or Land law. This is manifest in the initial draft of the Constitution, where actions on questions of the constitutionality of legislation could only be brought by the Federal government (against the legislation of one or another of the states or Länder) and by the State or Land governments (against federal legislation). Right from the beginning, however, the Court could examine a parliamentary act ex officio when it had to apply such an act in another proceeding. It was this power of the Court that triggered the development of constitutional review. Its exercise gradually transformed the Court into a guardian of the Constitution as a whole, in particular, the fundamental rights of citizens. The author traces this development in the context of the concept of state and law that prevailed in the late nineteenth and early twentieth century. This concept included specific restrictions on constitutional review. On the basis of a different understanding of the functions of a constitution, the Court gave up these restrictions and followed the examples of the European Court of Human Rights, the German Constitutional Court and—indirectly—the American Supreme Court.     

Secularism before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights

The justification for the restrictions on religion inherent in secularism is the subject of lively debate in constitutional and political theory. As a rights‐focused text, the ECHR struggles to accommodate constitutional principles such as secularism whose aims and justifications may go beyond the protection of the rights of others and include abstract goals such as upholding the religious neutrality of the state. Rights alone cannot provide an adequate account of the relationship between religion, state and law, and in Ebrahimian v France, the Strasbourg Court rightly reaffirmed that secularism and strict neutrality can be in harmony with the values of the Convention. However, the Court needs more clarity about the reasons for this stance and to be vigilant in its protection of private autonomy so that the use of abstract principles to restrict religious expression does not give excessive latitude to states to restrict individual autonomy and minority rights.     

Lord Cooke of Thorndon (1926–2006): 51 Years in the Law

This article provides an in‐depth analysis of the landmark ‘cash for query’ judgment of the Constitutional Bench of the Supreme Court of India. The scope of parliamentary privileges in India, as well as in England and America, is examined, particularly with respect to the jurisdiction of the courts. The present position in the law of parliamentary privileges in India was laid down in the case of Raja Ram Pal v The Hon’ble Speaker, Lok Sabha, &; Ors. The Supreme Court of India has extensively dwelled on the matter and has delivered a judgment, which is by far the most comprehensive decision in this field of law. The author notes in the analysis that the difference between the English and Indian constitutional systems is of crucial significance. The conflicts between the judiciary and parliament in England arose because of the sovereignty of parliament, and the judiciary had to fight for every inch of its jurisdiction in England. The judiciary had to contend with Parliament not only as a legislative body, but also by virtue of being the ‘High Court of Parliament’, as a superior court. Because of these reasons, the case law from British constitutional history does not have strict applicability in India. The decision of the Supreme Court of India in Raja Ram Pal v The Hon’ble Speaker, Lok Sabha, &; Ors, is a clear expression of a very basic feature of the Indian constitutional mechanism: where the Constitution is the supreme law of the land, and all governmental organs, which owe their origin to the Constitution and derive their powers from its provisions, must function within its framework.     

Congressional Frequent Flyers: Demand‐ and Supply‐Side Explanations for Privately Sponsored Travel

Privately sponsored congressional travel raises questions about the influence of interest groups on lawmakers and about legislative behavior. I used multiple regression to explain variation in congressional travel, looking at 15,825 trips, both domestic and overseas, taken by House and Senate members and their staff between 2001 and 2004. I found that both supply‐side and demand‐side factors influence congressional travel. Electoral vulnerability corresponds with reduced trip‐taking, and institutional power is associated with greater trip‐taking, although not to the extent that rent‐seeking theory might predict. Members' racial or ethnic minority status also corresponds with greater trip‐taking in the House. Pending retirement also influences trip‐taking, but in the opposite direction from what some “shirking” theories would predict.