Judicial review’s main effect was deterring legislation, not voiding it

Evidence

The worst thing about this power was that it was randomly and irresponsibly exercised. It could be neither predicted nor controlled. Judges did not declare all social laws unconstitutional, only some of them (probably a minority). Nor were all statutes even challenged in court. The court had no way to pull cases into its docket. Some litigant had to finance the case. And even then, a court could dodge the constitutional issue. Judicial review was a slow process. One scholar studied 172 Indiana cases in which the court declared laws unconstitutional. On average, the statutes were slightly under five years old when they were voided. In fifty cases, the statutes had been on the books for more than five years. Seventeen statutes were struck down after ten years or more of apparent validity; in one case the elapsed time was forty-​two years. The impact of judicial review, as we said, is not that clear. Judicial review killed some statutes. But it probably prevented many more from ever getting passed in the first place. — Lawrence M. Friedman, A History of American Law, 2115

Categorization

• XREF: Connects to the book’s running theme (ch51-52) that late-nineteenth-century constitutional clauses armed judges; also the ‘chilling effect’ idea parallels the reader’s LGST thread on how institutions shape behavior before any ruling. — connects to: Judicial review made courts seem reactionary fortresses to labor and reformers — Lawrence M. Friedman, A History of American Law, 2099; Judicial review is the power of courts to strike down unconstitutional government actions. — G. Alan Tarr, Judicial Process and Judicial…, 1383

Broader Connections

• Judicial review is the power of courts to strike down unconstitutional government actions. #expands (0.75) — G. Alan Tarr, Judicial Process and Judicial…, 1383