Policy,Position-Taking,and Congressional Voting under Judicial Review

Judicial review introduces uncertainty for members of Congress about whether and to what extent bills they pass will have enduring policy consequences. We argue that the risk courts will strike down a law influences members’ of Congress strategic calculations about roll call voting, decreasing the relative importance of policy judgments and increasing the relative importance of position-taking considerations. We evaluate some empirical implications of this claim, analyzing a series of votes cast in the United States Senate on proposals to ban flag burning in 1989 following Texas v. Johnson. Comparisons of floor votes on a statutory flag burning ban—which could be overruled by the Supreme Court—and a constitutional amendment to ban flag burning—which would not have been subject to judicial review—are consistent with theoretical claims about strategic legislative behavior due to judicial review. We discuss some implications of this result for congressional politics and normative debates about the role of judicial review in American government.