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How Often Has the U.S. Supreme Court Struck Down a Federal Law? Part II

More often than you might thinkKeith Whittington |The Volokh Conspiracy: “As I noted last week, there once was a robust political and scholarly debate over the answer to the question of how often the U.S. Supreme Court had struck down a provision of a federal statute. The question was thought to matter because the history implied something about how legitimate the power of judicial review might be and how aggressively the courts should use it. The answer was disputed because neither the Court nor Congress kept track of how often a law had been struck down and the correct count was not obvious…I decided to start from scratch and read thousands of U.S. Supreme Court cases that could plausibly have said something about the constitutional limits to the legislative power of Congress. From that, I have constructed a new Judicial Review of Congress database that tries to provide a comprehensive list of every instance in which the U.S. Supreme Court substantively reviewed the constitutionality of the application of a provision of a federal statute, identified the constitutional boundaries of the legislative power of Congress, and either upheld the statute against constitutional challenge or refused to apply the statute due to constitutional defect….

The Judicial Review of Congress Database is now publicly available. It includes a list of all the cases in which the Court has substantively reviewed the constitutionality of an act of Congress from 1789 through the spring of 2018, as well as a variety of associated information such as identifying information about the statute that was reviewed, a measure of its importance, and the length of time between the passage of the statutory provision and its review by the Supreme Court. The details of the standard for case selection and the process of identifying instances of judicial review are elaborated in the appendix to my book, Repugnant Laws. Over time I expect to update the database, add new variables, and create some more reader-friendly lists of the some 1300 cases in which the Court exercised the power of judicial review over Congress…”

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