Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model


  • Jeffrey A. Segal is Chair of Political Science and SUNY Distinguished Professor at Stony Brook University, Stony Brook, NY 11794-4392 ( Chad Westerland is Associate Professor of Political Science and Associate Director, School of Government and Public Policy, University of Arizona, 315 Social Sciences Building, Tucson, AZ 85721-0027 ( Stefanie A. Lindquist is Thomas W. Gregory Professor of Law at the University of Texas School of Law, 727 E. Dean Keeton St., Austin, TX 78705 (

  • The authors would like to thank Kirk Randazzo, Lewis Kornhauser, Chris Bonneau and brown-bag participants at Vanderbilt Law School, Princeton University, Harris School of Public Policy (University of Chicago), and Cornell Law School for helpful comments. We also thank Jenna Lukasik, Andrew Pate, and Paulo Tanimoto for their research assistance in connection with this project. A full replication archive is available at


Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational-anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional-maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll-call votes to estimate support in the current Congress for the original legislation and the Court's preferences over that legislation. We find that the Court does not appear to consider the likelihood of override in constitutional cases, but it does back away from striking laws when it is ideologically distant from Congress.