Vol. 14 No. 8 (August 2004), pp.683-687

CONSTITUTIONAL DELIBERATION IN CONGRESS: THE IMPACT OF JUDICIAL REVIEW IN A SEPARATED SYSTEM, by J. Mitchell Pickerill. Durham, N.C.: Duke University Press. 208pp. Paper $21.95.  ISBN: 0-8223-3260-0.  Hardbound $74.95. ISBN: 0-8223-3235-3. 

Reviewed by Albert P. Melone, Department of Political Science, Southern Illinois University Carbondale. Email: melone@siu.edu .

It is a mistake to conclude that it is the end of the matter after the U.S. Supreme Court rules on the constitutionality of a congressional statute, executive action, administrative rule or regulation, or a state action. Legislative and executive actors are capable of responding to judicial pronouncements they regard as inconsistent with preferred public policy. J. Mitchell Pickerill presents his readers with a carefully deduced set of observations focusing on congressional reactions and anticipations of modern U.S. Supreme Court opinions as each relates to American federalism and the regulation of interstate commerce.  In particular, he focuses on the legislative responses to the Supreme Court’s opinions in UNITED STATES v. LOPEZ (1995), PRINTZ v. UNITED STATES (1997), and UNITED STATES v. MORRISON (2000). He also looks at the 1997 Hate Crimes Bill that was introduced after the Court’s LOPEZ decision.  The result is a set of empirical findings supporting the conclusion that at times Congress is motivated by Supreme Court opinions when writing legislation, but usually legislators are inattentive to such matters preferring to focus on public policy results and constituent demands.

This well-written book is a revision of the author’s Ph.D., political science dissertation completed at the University of Wisconsin, Madison. Unlike too many conceptually and methodologically uni-dimensional dissertations, the researcher takes a multifaceted approach to research design and data analysis. Moreover, Pickerill is not reluctant to share his normative perspective in ways that are clearly discernable. As is the case for those of us who take constitutions seriously, Pickerill believes that constitutional deliberation should not be left solely to the oracles clad in black robes. In at least this one respect, Pickerill shares Jefferson’s view; namely, all government officials should self-consciously examine the constitutionality of their actions in their respective spheres of authority.

As rich as it surely is, the author is not limited by the narrow confines of the contemporary public law literature. He deftly utilizes the legislative behavior literature by explaining that usually legislators are preoccupied with the more mundane matter of re-election. When fashioning new law, constitutional analysis is normally a low priority in the rational calculations of most legislators. They ordinarily do not engage in constitutional analysis unless the courts, through the exercise of judicial review, make it an issue to which legislators feel they must respond. On this point, the book is a fine example of the execution [*684] of Martin Shapiro’s clarion call three decades ago; he urged public law scholars to feel free to take their research wherever the search for explanations of public policy may take them.

The author employs two mutually compatible approaches to the study of congressional reactions to judicial review—i.e., the “constitution outside the court” approach, and rational choice theory. The first emphasizes the ability of non-judicial actors, in particular, members of Congress, to be part of the debate about what the constitution means.  The second emphasizes that House and Senate members sometimes act strategically when engaging the Supreme Court in constitutional dialogue. Congresspersons rationally calculate how to achieve political and policy objectives within the restrictions and limitations set out by the courts.  Pickerill does a nice job of providing an elementary but clear quantitative account of all federal legislation declared unconstitutional beginning with the Warren Court in 1953 through the 1996-97 term of the Rehnquist Court. He carefully studied the legislative histories of the selected laws and legislative proposals. Though his reading of the legislative history of statutes is illuminating, the author utilizes his finely tuned sociological imagination to read between the lines. Yet, he realized that in order to achieve explanation he needed to interview members of Congress, staff personnel, lobbyists, and others. His wide-ranging interviews of forty-four persons provide evidence in support of his general conclusion that members of Congress will engage in constitutional deliberation when they feel compelled to respond to adverse Supreme Court opinions.

The author does a fine job describing the Supreme Court’s highly restrictive Commerce Clause doctrine beginning from the early part of the twentieth century to the changed interpretations of the late 1930s and early 1940s, and subsequently leading to the expansive holdings with respect to the 1964 Civil Rights Act. Pickerill then examines the Court’s radical departure from what had been the accepted wisdom in support of cooperative federalism.  He describes the line of Supreme Court decisions from the New Deal era through the 1964 Civil Rights Act that lead constitutional law specialists and politicians to believe that the Supreme Court would continue to behave deferentially toward Congress in its Commerce Clause interpretations.  But Pickerill is not interested in offering a critical analysis of the Rehnquist Court federalism jurisprudence.  Instead, he investigates whether Congress simply lies down by accepting the high court’s assessments of what is acceptable regulation, or whether members go to work to revise constitutionally infirm statutes to rescue their underlying public policy preferences.

In UNITED STATES v. LOPEZ (1995), the Court held that banning weapons on and around school grounds is not an appropriate congressional exercise of the commerce power.  Yet, congressional leaders, wanting to maintain the politically popular position that school violence is unacceptable, amended the original law by addressing the Court’s specific objections—to wit, a legislative finding that guns in schools affect interstate commerce, and that the reach of the law should extend only to those guns that traveled in interstate commerce.  As of the 2004 publication date of his book, Pickerill did not have a [*685] definitive Supreme Court judgment that the change in the law will satisfy its narrow 5-4 LOPEZ majority. Yet, whatever the high court might ultimately decide, the legislative history of this law makes clear that Congresspersons are capable of taking action to save policy they think wise.

The Violence Against Women Act, passed one year before the Court’s LOPEZ opinion, similarly failed the constitutional test in UNITED STATES v. MORRISON (2000). Unlike the original gun control legislative history, Pickerill’s examination of the legislative record reveals that some members of Congress raised briefly the constitutional question of invading the traditional powers of the state to regulate private and family matters. Yet, those objections received little attention; they took a back seat to the greater policy and political consideration entailed in the nature of the legislation itself.

When the Supreme Court in PRINTZ v. UNITED STATES (1997) struck down that provision of the 1993 Brady Bill requiring local law enforcement personnel to carry out background checks on persons seeking to purchase guns, Congress did not move to save that section of the law from the constitutional dustbin.  Why the apparent anomaly between the congressional reactions to LOPEZ and PRINTZ? The author might have elected to wax philosophical or ignore the question altogether. Rather, he did what Woodrow Wilson suggested that all good empiricists should do— observe first-hand the workings of Congress and government more generally (I hasten to add that Wilson himself did not take his own advice).  Pickerill asked members of Congress, congressional staff, lobbyists, and others what happened and why. It turns out that the unfunded congressional mandate requiring local police to conduct background checks was to be phased out in a matter of only few short years. Further, despite the Supreme Court’s ruling that they need not, many local law enforcement officials continued to conduct background checks. They realized that, if someone in their jurisdiction committed a crime with a gun which otherwise might have been prevented with an easily administered local background check, an outraged public might very well hold them personally responsible and in the process end careers.

The language of the Hate Crimes Bill introduced and debated in the 105th Congress (1997-98) is an example of legislation designed to conform to the Supreme Court’s LOPEZ opinion.  Unlike the gun control law that the Supreme Court found constitutionally deficient, the House version of the bill laid out the case that hate crimes are a national problem and they have an adverse effect on interstate commerce. It specifically provided that prosecutions under this proposed law must link the defendant with crime victims who travel in interstate or foreign commerce, or who use some facility in interstate or foreign commerce, or who engage in some form of interstate or foreign commerce.  The author makes a persuasive case that there is little doubt that the bill’s sponsors carefully considered the Commerce Clause in a way that was unlikely prior to LOPEZ.

Although this book is a fine treatment of how the contemporary Congress treats Supreme Court federalism opinions [*686] involving judicial review, it is by no means a complete treatment of the subject of Congressional-Court relations. In fairness, the author does not claim otherwise. Yet, it would have been helpful to those readers unfamiliar with Congress and the Court studies to devote a few pages to the broader subject. Subsets of a more expansive treatment of the subject should at least include any number of Court curbing tactics. Congressional reversals of court interpretations of existing statutory law are one such example. The recently published book by Jeb Barnes titled, OVERRULED? LEGISLATIVE OVERRIDES, PLURALISM, AND CONTEMPORARY COURT-CONGRESS RELATIONS is reported to do just that and is part of a line of research dating back several decades.  The threat to remove appellate jurisdiction from federal courts is commonly heard; in some instances, the removal of original jurisdiction from the U.S. district courts is another tool that Congress may employ against the exercise of judicial power. The introduction and passage of constitutional amendments is yet another way Supreme Court decisions may be overturned. Congress also sends signals to the judiciary through the power of the purse. It may punish the judiciary and its members for rendering unfavorable opinions by failing to increase overall judicial branch appropriations, including judicial salaries.

Although for what he does he does well, I was somewhat disappointed that the author’s review of the pertinent Court-Congress relations literature seems limited to currently active scholars. The writings of Charles Warren, Charles Grove Haines, and Edward Corwin of the first part of the twentieth century, and Walter F. Murphy, C. Herman Pritchett, John R. Schmidhauser, Harry F. Stumpf and others at mid-century provide data, useful insights, and commentaries concerning what were once called inter-institutional conflicts. Lest we constantly reinvent the intellectual wheel, it would be a sad mistake to assent to the citation of only recent literature at the exclusion of earlier contributions. By no means is Professor Pickerill alone in what appears to be a growing practice; nor do I mean to imply that he is an egregious offender. Yet, the rich bibliographical heritage of our discipline should be passed from one generation of scholars to the next.  In this way, we may all take advantage of the labors of those who have come before us. It is also useful in guarding against unwarranted intellectual hubris—an occupational pathology exhibited by more than a few of us.

This book deserves serious attention by all public law scholars, political scientists more broadly defined, and politically active persons. The author provides the proper balance of case law with legislative history and quantitative analysis by employing appropriate conceptual approaches and methods. While some students of comparative judicial politics are already exploring issues in separated systems of government, with a little imagination they may adapt J. Mitchell Pickerill’s conceptualization for their own purposes.  Happily, this book is also a quick read that instructors may find as an appropriate addition to course syllabi for a wide range of political science courses.   [*687]




PRINTZ v. UNITED STATES, 521 US 98 (1997).

UNITED STATES v. LOPEZ, 514 US 549 (1995).

UNITED STATES v. MORRISON, 529 US 598 (2000).


Copyright 2004 by the author, Albert P. Melone.