Saying What the Law Is: Measuring 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 American Political Science Association, New Orleans, LA, August 30-September 2, 2012

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 judicial minimalism or narrow rulings as deferential to legislative majorities (e.g. Bickel 1961; Sunstein 1999). 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: 1.Uphold Broadly 2.Uphold Narrowly 3.Strike Down As Applied 4.Strike Down On Face Narrowly 5.Strike Down On Face Broadly

Table 1. Typology of Judicial Review Uphold Broadly Uphold Narrowly Strike Down As Applied Strike Down On Face Narrowly Strike Down On Face Broadly Uphold in entirety No limitations on decision or state action Uphold with limitations on decision or state action Uphold as applied Strike down as applied Strike down based on facts Specific provisions severed and struck down Strike down on face but with direction for alternatives to achieve policy ends Strike down on face broadly because policy area is not within the power of state actor

CODING AND MEASURING JUDICIAL REVIEW: ILLUSTRATIVE CASES We trained two student research assistants and had them code the decision to fit into one of the five categories using the definitions in the previous section as the decision-rules. We began with cases we were familiar with and that we thought exemplified the categories based on our own reading. The research assistants independently coded each of the following cases in the categories we had predetermined, indicating that the stated decision-rules were reasonably clear and could be implemented.

Table 2. Variation in Upholding Behavior: Illustrative Cases Uphold Broadly U.S. v. Comstock (2010) "The Constitution ‘addresse[s]’ the ‘choice of means’ ‘primarily … to the judgment of Congress. '" "[The law] is a modest addition to a longstanding federal statutory framework." Uphold Narrowly Milavetz, Gallop & Milavetz v. U.S. (2010) "After reviewing these competing claims, we are persuaded that a narrower reading of [the statute] is sounder, although we do not adopt precisely the view the Government advocates."

Table 3. Variation in Striking Behavior: Illustrative Cases Strike Down As Applied FCC v. Fox Television Stations (2012) -- “Because the Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the Commission’s standards as applied to these broadcasts were vague” -- “It then applied this new principle to these cases. Its lack of notice to Fox and ABC of its changed interpretation failed to give them ‘fair notice of what is prohibited.’” Strike Down On Face Narrowly Pepper v. U.S. (2011) -- “Because ‘departures are not available in every case, and in fact are unavailable in most,’ [citation omitted] we held that remedying the Sixth Amendment problem required invalidation of § 3553(b)(1). That same remedial approach requires us to invalidate § 3742(g)(2).” -- “District courts post-Booker may consider evidence of a defendant’s postsentencing rehabilitation at resentencing and such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range.” Strike Down On Face Broadly Citizens United v. FCC (2010) -- “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.” -- “This case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment's meaning and purpose.”

CODING AND MEASURING JUDICIAL REVIEW: The Roberts Court ( ) We used the Supreme Court database to identify all the decisions of the Roberts Court ( terms) involving the constitutionality of federal legislation. Consistent with the United States Supreme Court database, we coded for the case outcome and the individual votes of each justice. The research assistants were instructed to extract and record language from opinion(s) in the decision that justified their coding decision(s). For the term we read the syllabus for every case decided by the Court and identified those in which the Court decided the constitutionality of federal legislation.

Table 4. Frequencies of Judicial Review Outcomes, Roberts Court ( ) Judicial Review OutcomeFrequencyPercent Uphold Broad27.1% Uphold Narrow1139.3% Strike As Applied828.6% Strike Narrow414.3% Strike Broad310.7% Total28100%

Table 5. Justices’ Votes and Judicial Review Outcomes Justice Uphold Broad Uphold Narrow Strike As Applied Strike Narrow Strike BroadTotal Sotomayor5 (29.4%)6 (35.3%)4 (23.5%)1 (5.9%) 17 (100%) Kagan1 (11.1%)3 (33.3%)4 (44.4%)1 (11.1%)0 (0.0%)9 (100%) Ginsburg5 (18.5%)11 (40.7%)6 (22.2%)3 (11.1%)2 (7.4%)27 (100%) Breyer3 (10.7%)12 (42.9%)9 (32.1%)2 (7.1%) 28 (100%) Kennedy2 (7.1%)9 (32.1%)6 (21.4%) 5 (17.9%)28 (100%) Souter0 (0.0%)5 (50.0%)2 (20.0%) 1 (10.0%)10 (100%) Stevens2 (11.8%)10 (58.8%)2 (11.8%)1 (5.9%)2 (11.8%)17 (100%) Thomas3 (10.7%)8 (28.6%)5 (17.9%) 7 (25.0%)28 (100%) Roberts2 (7.1%)11 (39.3%)8 (28.6%)4 (14.3%)3 (10.7%)28 (100%) Alito0 (0.0%)13 (52.0%)3 (12.0%)6 (24.0%)3 (12.0%)25 (100%) Scalia2 (7.1%)10 (35.7%)4 (14.3%)6 (21.4%) 28 (100%)

Table 6. Judicial Minimalists: Justices Most Likely to Rule Narrowly, Roberts Court ( ) JusticeNumber of Narrow DecisionsPercentage of Narrow Decisions Souter990.0 Kagan888.9 Roberts Breyer Stevens Alito Kennedy Ginsburg Scalia Sotomayor Thomas1864.3

Table 7. Judicial Review Outcomes and Consensus on the Roberts Court, Judicial Review Outcome # Dissents Uphold Broad Uphold Narrow Strike As Applied Strike Narrow Strike BroadTotal 00 (0%) 4 (57.1%) 3 (42.9%) 0 (0%) 0 (0%) 7 10 (0%) 1 (25.0%) 2 (50.0%) 0 (0%) 1 (25.0%) 4 22 (40.0%) 2 (40.0%) 0 (0%) 1 (20%) 0 (0%) 5 30 (0%) 0 (0%) 1 (100%) 0 (0%) 0 (0%) 1 40 (0%) 4 (36.4%) 2 (18.2%) 3 (27.3%) 2 (18.2%) 11 Total2 (7.1%) 11 (39.3%) 8 (28.6%) 4 (14.3%) 3 (10.7%) 28 (100%)

Conclusion: Implications Judicial review is a more complex concept than is captured by a dichotomous variable. The Roberts Court rules narrowly far more often than it rules broadly. Ideologically moderate justices rule more narrowly than do their ideologically extreme colleagues. The Roberts Court has only been able to achieve unanimity by ruling narrowly. Future research can explore: – 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.