Congress and the Courts of Appeals

• In Event: US Courts of Appeals: The Appellate Work Horses of the Federal Judiciary

Abstract

When the Supreme Court strikes down an act of Congress, normative questions arise about the proper role of life-tenured, unelected judges in the American system of government. Similar questions arise when lower courts strike down acts of Congress, but political science research has given considerably less attention to these decisions. Using a novel dataset of Courts of Appeals decisions exercising the power of judicial review of federal legislation during the eras of the Rehnquist and Roberts Courts, I find that any given law is more likely to be invalidated at the circuit court level than at the Supreme Court level. Furthermore, most Supreme Court invalidations were preceded by an invalidation at the circuit level, although the Supreme Court sometimes intervenes even when no circuit court had found a law unconstitutional. Thus, this paper highlights the important role that the Courts of Appeals play in the American separation of powers.

Author

• Albert Rivero, University of Virginia