Congressional End-Run: The Ignored Constraint on Judicial Review

Abstract

This Article identifies an untended connection between the research of legal academics and political scientists. It explains how recent developments in constitutional theory, when read in good light, reveal a gap in the judicial politics literature on Supreme Court decisionmaking. The gap is the “congressional end-run.” End-runs occur when Congress mitigates the policy costs of adverse judicial review through neither formal limits on the Court’s autonomy nor substitution of its constitutional interpretation for that of the Court, but through a different decision which cannot, as a practical if not legal matter, be invalidated by the Court. End-runs come in several forms, including congressional decisions to grant authority to the Executive Branch, to adjust appropriations, to modify certain contingent laws, and to reorient legislation in alternate constitutional clauses. Ignored by political scientists, end-runs undoubtedly constrain the judicial decisionmaking of the strategic Justices assumed by judicial politics scholars. This Article calls on judicial politics scholars to incorporate the end-run into their formal SOP models and related empirical studies. Such incorporation promises to give political scientists a fuller sense of how their strategic Justices interact with Congress in our constitutional democracy.