Hostname: page-component-77c89778f8-m8s7h Total loading time: 0 Render date: 2024-07-17T15:03:05.889Z Has data issue: false hasContentIssue false
  • English
  • Français

Legislative Responses to Unconstitutionality: A View from the States

Published online by Cambridge University Press:  21 October 2022

Matthew H. Bosworth
Matthew H. Bosworth*
Affiliation:
Winona State University
*
Contact the author at mbosworth@winona.edu.
Get access Rights & Permissions [Opens in a new window]

Abstract

This article contributes to literature on legislative-court relations by incorporating the states. Pickerill (2004) examined congressional responses to court rulings declaring statutes unconstitutional, classifying responses into three categories—amending, repealing, or doing nothing. I assembled a list of all Minnesota, Michigan, and Wyoming statutes declared unconstitutional from 1940 to 2008 by state or federal courts. I then determined the legislature’s response. I find unexpected differences in state responsiveness, and between the states and Congress. Also, state legislatures are more likely to respond to a ruling of unconstitutionality from their own courts than from the federal courts.

Type
Research Article
Information
Journal of Law and Courts , Volume 5 , Issue 2 , Fall 2017 , pp. 243 - 266
Copyright
© 2017 by the Law and Courts Organized Section of the American Political Science Association. All rights reserved.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

Note: The author wishes to thank, in no particular order, J. Mitchell Pickerill, Michael Gauger, John Dinan, Jeff Yates, Christopher Shortell, JLC editor David Klein, and the anonymous reviewers for their helpful suggestions and comments on this article. Data are available at the JLC Dataverse (http://dx.doi.org/10.7910/DVN/WZB1EN). If using the data, please cite this article.

References

Abrahamson, Shirley, and Robert L. Hughes. 1991. “Shall We Dance? Steps for Legislators and Judges in Statutory Interpretation.” Minnesota Law Review 75:1045.Google Scholar
Baker, C. J. 2013. “Attorney General: Lawmakers Free to Talk about Senate File 104.” Powell [WY] Tribune, May 21.Google Scholar
Barnes, Jeb. 2004. Overruled? Legislative Overrides, Pluralism, and Contemporary Court-Congress Relations. Stanford, CA: Stanford University Press.CrossRefGoogle Scholar
Barron, Joan. 2013. “U.S. Senate Unanimously Approves Wyoming Attorney General Greg Phillips for Judgeship.” Casper Star-Tribune, July 8.Google Scholar
Brace, Paul, and Brent D. Boyea. 2007. “Judicial Selection Methods and Capital Punishment in the American States.” In Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections, ed. M. J. Streb. New York: New York University Press.Google Scholar
Cameron, Charles M. 2000. Veto Bargaining: Presidents and the Politics of Negative Power. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Canes-Wrone, Brandice, Tom S. Clark, and Jason P. Kelly. 2014. “Judicial Selection and Death Penalty Decisions.” American Political Science Review 108:23–39.CrossRefGoogle Scholar
Congressional Research Service, Library of Congress. 2012. “The Constitution of the United States of America: Analysis and Interpretation, Centennial Edition.” S. Doc. 112-9. http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2012.Google Scholar
Dahl, Robert A. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy Maker.” Journal of Public Law 6:279.Google Scholar
Devins, Neal, and Keith E. Whittington, eds. 2005. Congress and the Constitution. Durham, NC: Duke University Press.CrossRefGoogle Scholar
Fisher, Louis. 1988. Constitutional Dialogues: Interpretation as Political Process. Princeton, NJ: Princeton University Press.CrossRefGoogle Scholar
Graber, Mark A. 1993. “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary.” Studies in American Political Development 7:35.CrossRefGoogle Scholar
Grand Rapids Press. 2009. “Show Me Where the Money Came From: State’s Elected Justices Should Require Transparency on Political Donations.” Editorial. June 14.Google Scholar
Hall, Melinda Gann. 1992. “Electoral Politics and Strategic Voting in State Supreme Courts.” Journal of Politics 54:427–46.CrossRefGoogle Scholar
Hasen, Richard. 2013. “End of the Dialogue? Political Polarization, the Supreme Court, and Congress.” Southern California Law Review 86 (2): 205.Google Scholar
Hoekstra, Valerie. 2009. “The Pendulum of Precedent: U.S. State Legislative Response to Supreme Court Decisions on Minimum Wage Legislation for Women.” State Politics and Policy Quarterly 9 (3): 257–83.CrossRefGoogle Scholar
Katzmann, Robert A. 1997. Courts and Congress. Washington, DC: Brookings Institution Press.Google Scholar
Kite, Marilyn S. 2007. “Wyoming’s Judicial Selection Process: Is It Getting the Job Done?” Fordham Urban Law Journal 34:203.Google Scholar
Langer, Laura. 2005. “Inter-branch Communications: How Well Do State Supreme Courts Know State Legislators?” Working paper, University of Arizona.Google Scholar
Langer, Laura, and Paul Brace. 2005. “The Preemptive Power of State Supreme Courts: Adoption of Abortion and Death Penalty Legislation.” Policy Studies Journal 33 (3): 317–40.CrossRefGoogle Scholar
Langer, Laura, and Teena Wilhelm. 2005. “Elite Perceptions of Inter-branch Relations: Are State Supreme Courts Welcome Participants in the Policy-Making Process?” Working paper, University of Arizona.Google Scholar
Lopez, Ricardo. 2017. “Dayton Vetoes Pair of GOP-Backed Abortion Bills, as Expected.” Minneapolis Star-Tribune, May 11.Google Scholar
Lovell, George I. 2003. Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy. Cambridge: Cambridge University Press.Google Scholar
Michigan Courts. 2016. http://courts.mi.gov/education/learning-center/Pages/hidden/History-of-Michigan%27s-Judicial-System.aspx.Google Scholar
Miller, Mark C. 2009. The View of the Courts from the Hill: Interactions between Congress and the Federal Judiciary. Charlottesville: University of Virginia Press.Google Scholar
Miller, Susan M., Eve M. Ringsmuth, and Joshua M. Little. 2015. “Pushing Constitutional Limits in the United States: Legislative Professionalism and Judicial Review of State Laws by the U.S. Supreme Court.” State Politics and Policy Quarterly 15 (4): 476–91.CrossRefGoogle Scholar
Moncrief, Gary F., and Joel A. Thompson, eds. 1993. Changing Patterns in State Legislative Careers. Ann Arbor: University of Michigan Press.Google Scholar
Pickerill, J. Mitchell. 2004. Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System. Durham, NC: Duke University Press.Google Scholar
Rogers, James. 2001. “Information and Judicial Review: A Signaling Game of Legislative-Judicial Interaction.” American Journal of Political Science 45 (1): 84–99.CrossRefGoogle Scholar
Rosenthal, Alan. 1996. “State Legislative Development: Observations from Three Perspectives.” Legislative Studies Quarterly 21:169–98.CrossRefGoogle Scholar
Squire, Peverill. 2007. “Measuring State Legislative Professionalism: The Squire Index Revisited.” State Politics and Policy Quarterly 7 (2): 211–27.CrossRefGoogle Scholar
Squire, Peverill. 2008. “Measuring the Professionalization of State Courts of Last Resort.” State Politics and Policy Quarterly 8 (3): 223–38.CrossRefGoogle Scholar
Whittington, Keith. 2005. “‘Interpose Your Friendly Hand’: Political Supports for the Exercise of Judicial Review by the United States Supreme Court.” American Political Science Review 99 (4): 583–96.CrossRefGoogle Scholar
Widman, Amy. 2014. “Interpretive Independence: The Irrelevance of Selection and Retention Methods to State Statutory Interpretation.” Unpublished manuscript, Social Science Research Network. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2464302.Google Scholar