In the 2019 case United States v. Davis, Justice Gorsuch began with an important statement regarding constitutional statutes. Gorsuch wrote, “In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.”

Davis looked at 18 U. S. C. §924(c), a statute that applies length prison sentences for anyone who uses a firearm in connection with certain other federal crimes.  Seemingly unanswered by the statute though was which federal crimes suffice. Gorsuch went on to say, “[the] imposition of criminal punishment can’t be made to depend on a judge’s estimation of the degree of risk posed by a crime’s imagined ‘ordinary case.’” The Court ultimately held 18 U. S. C. §924(c) to be unconstitutional. 

Untied States v. Davis was one of five cases from the 2018 term where the Supreme Court looked at the constitutionality of a federal statute or action. The Court found the governmental action or statute at issue unconstitutional in three of these cases. The other two were from Iancu v. Brunetti and United States v. Haymond. Iancu looked at the constitutionality of Section 2(a) of the Lanham Act, which prohibits the federal registration of “immoral” or “scandalous” marks. Haymond examined whether 18 U.S.C. § 3583(k) violates the Fifth and Sixth Amendments by imposing a mandatory minimum punishment on a criminal defendant upon a finding by a preponderance of the evidence that the defendant engaged in certain criminal conduct during supervised release.  The two cases where federal statutes or actions were reviewed without a finding of unconstitutionality were Gamble v. United States and Gundy v. United States.

Are there any signs that the Court will find federal statutes constitutional? Does it have any bearing on the relationship between Congress and the Court? In a seminal public law article from 1957 entitled Decision-Making in a Democracy: The Supreme Court as a National Policymaker, Robert Dahl wrote on this subject: “Except for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions, the Supreme Court is inevitably a part of the dominant national alliance. As an element in the political leadership of the dominant alliance, the Court of course supports the major policies of the alliance. By itself, the Court is almost powerless to affect the course of national policy. In the absence of substantial agreement within the alliance, an attempt by the Court to make national policy is likely to lead to disaster, as the Dred Scott decision and the early New Deal cases demonstrate.” According to Dahl, except for the occasional blip in the system, the Court will support the decisions of those in power.

But when is the Court more out of step with the political leadership? Perhaps ideological differences bring this distinction to bear. The Judicial Common Space gives us some leverage over this question by bridging the ideological position of the Supreme Court with that of Congress (and most importantly with the House of Representatives). Before getting to the comparisons between the House and the Supreme Court, the first figure shows based on the Court’s entire merits case docket, the percentage of cases since the 2000 Term where the Court examined federal statutes or federal government actions.

This graph shows large fluctuations with the Court taking the highest percentage of these cases in 2003 with just over 15% of the merits docket and a low in 2008 when these cases made up only 2.4% of the Court’s merits docket. The graph is noisy with large fluctuations between the 2% and 15% range with many hills and dips over the years.

One of the explanations for the Court reviewing federal statutes and actions has to do with the ideological disparity between Congress and the Court. We can begin by looking at the ideology of the median member of the Supreme Court over this period to see if this provides any hints at the differing percentage of such judicial review cases.

Higher numbers on this chart reflect a more conservative median ideology while lower numbers reflect a more liberal median ideology. Generally liberal ideology scores are below zero, however, which indicates that even in the most liberal times over this period, the Court maintained an overall conservative balance. One interesting correlation is that for the period of 2006 through 2010, the SCOTUS median ideology was near its highest point while the percentage of judicial review cases was near the bottom. This may indicate that the Court focuses on other issues aside from judicial review when its base is more conservative.

Next let’s look at the median ideology for the House of Representatives for this period.

Since the ideologies for the Court and for the House are on the same scale we can see that there was a relative decline in the House’s median ideology into a more liberal zone for the period of 2006 through 2009 – the same period where we see a dip in judicial review cases as a percentage of the Court’s overall merits docket. The next graph focuses on the ideological distance between the median on the Court and the House median.

Here we see the differences in ideology are greatest for the previously discussed period of 2006 through 2010 with other large differences between 2013 and 2016 and then again in 2018. While the data shows some correlation between these periods and instances of more or less judicial review of federal statutes or government actions, the noisiness of the first graph makes it difficult to derive inferences across the entire period.

A better metric for measuring the impact of ideology on the Court’s judicial review decisions may be the percentage of judicial review cases where the Court declared a federal statute unconstitutional.  This is what is depicted in the following graph. While the graph only shows the percentage of cases where a federal statute is ruled unconstitutional, the percentage is made up of all federal judicial review cases.

Here we begin to see a clear relationship between the ideological distance of the Court and the House and the Court’s decision making.  At the periods where the distance is the greatest, between 2006 and 2009 and then again in 2018, the highest percentages of federal statutes were ruled unconstitutional as a percentage of all judicial review cases examining federal statutes and actions. This shows that at least across the period of this article, when the Court was out of sync ideologically with the House of Representatives, it was more likely to overturn federal statutes. This doesn’t mean that these statutes were enacted by ideologically distant Houses, just that the Court overruled these statutes during times of greater ideological distance. One might draw the inference that the Court puts a larger microscope on Congress’ legislative decisions, past and present, when ideological distance between the Court and the House is the greatest.  While the data is open to a variety of hypotheses, the outcome implies the possibility that a majority of the Court is tuned into when there is a greater ideological divide between the Court and the House.