Against constitutional mainstreaming

University of Chicago Law Review

Volumn 78, Issue 4, 2012, Pages 1203-1261

  Rossll, Bertrall L ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84860160538     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (366)

1. See Voting Rights Act Amendments of 1982 (1982 VRA Amendments), Pub L No 97-205, 96 Stat 131, codified as amended at 42 USC § 1973 (1982).
2. The context not foreseen was one in which there were advancements in residential racial integration but continued racially polarized voting, such that white voters in parts of the country rarely voted for minority-preferred candidates. See John Iceland and Daniel H. Weinberg, Racial and Ethnic Residential Segregation in the United States: 1980-2000 60 (US Census Bureau 2002), online at http://www.census.gov/prod/2002pubs/censr-3.pdf (visited Apr 1, 2011) (finding up to a 12 percent decline in segregation between blacks and non-Hispanic whites from 1980 to 2000 in metropolitan areas); Stephen Ansolabehere, Nathaniel Persily
3. and Charles Stewart III, Race, Region, and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act, 123 Harv L Rev 1385, 1395, 1413-30 (2010) (describing the continued persistence of "racially differential voting patterns" in southern states during the 2004 and 2008 presidential elections).
4. The primary tool that the enacting legislature intended to be used to address representational inequality was the requirement that under certain conditions states and political subdivisions draw majority-minority districts-that is, districts that contain a majority of minority voters. See Thornburg v Gingles, 478 US 30, 50-51 (1986) (establishing the prerequisites for a majority-minority district that the minority group be politically cohesive, that it be sufficiently numerous to constitute a majority in a compact district, and that whites usually vote as a bloc to defeat the minority's preferred candidate). These districts provided minorities with an opportunity to elect their candidate of choice. By 2009, increased residential integration made it difficult in some places to draw geographically compact districts that would provide minorities with the opportunity to elect the candidate of their choice.
5. See Parents Involved in Community Schools v Seattle School District No 1, 551 US 701, 747-48 (2007) (invalidating, under the Fourteenth Amendment Equal Protection Clause, a voluntary school integration plan on the basis of the colorblindness principle).
6. The recent voting statute reauthorizes § 5 of the Voting Rights Act. See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (VRA Reauthorization Act of 2006), Pub L No 109-246, 120 Stat 577, 580-81, codified at 42 USC § 1973 et seq. Examples of the concern for fair representation can be found in the Act and in the legislative history surrounding the Act. See VRA Reauthorization Act of 2006 § 2, 120 Stat at 577-78 (recounting congressional findings and purposes)
7. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (VRA Reauthorization Act of 2006 Senate Committee Report), S Rep No 109-295, 109th Cong, 2d Sess 2 (2006) (describing the purpose of the Voting Rights Act).
8. The more race-conscious interpretation would have been closer to the fringe of what the Court considers constitutional, but there is ample evidence to suggest that this interpretation would have nonetheless been constitutional. In particular, the Court's own test for when jurisdictions would be liable under the Voting Rights Act for failure to draw majority-minority districts requires the consideration of race. See Gingles, 478 US at 50-51. And given this standard, it is not clear why the race-conscious drawing of majority-minority districts would be any different from the race-conscious drawing of crossover districts, the issue presented in Bartlett. Given this distinction without difference, it is unlikely that the Court would have found the latter mandate unconstitutional if, for example, the VRA had explicitly required it.
9. During the past two terms, two other landmark cases have presented interpretive challenges similar to those in Bartlett. See generally Skilling v United States, 130 S Ct 2896 (2010) (involving the interpretation of the honest services fraud statute, 18 USC § 1346)
10. Ricci v DeStefano, 129 S Ct 2658 (2009) (involving the interpretation of Title VII of the Civil Rights Act).
11. Unforeseen circumstances can arise for a variety of reasons, including changes to the Constitution, society, and technology, as well as judicial interpretations not anticipated by the enacting legislature. See Lawrence Lessig, Fidelity in Translation, 71 Tex L Rev 1165, 1175-79 (1993).
12. See Ronald Dworkin, Taking Rights Seriously 81 (Harvard 1978). These "hard cases" present "one of the most vexing problems in the theory of statutory interpretation."
13. Daniel A. Farber and Philip P. Frickey, Law and Public Choice: A Critical Introduction 106 (Chicago 1991).
14. The constitutional requirements of bicameralism and presentment combined with congressional procedural obstacles to bill passage make it difficult to enact or amend statutes. See Walter J. Oleszek, Congressional Procedures and the Policy Process 1 (CQ 8th ed 2011).
15. William Eskridge coined the term "dynamic statutory interpretation" in his seminal work in the field, William N. Eskridge Jr, Dynamic Statutory Interpretation, 135 U Pa L Rev 1479, 1479 (1987).
16. Other scholars also have developed theoretical insights that are critical to a broader dynamic statutory interpretation theory. See also Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation 41 (Harvard 2008)
17. Nickolai G. Levin, Constitutional Statutory Synthesis, 54 Ala L Rev 1281, 1285-86 (2003)
18. Peter L. Strauss, The Common Law and Statutes, 70 U Colo L Rev 225, 254-55 (1999)
19. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv L Rev 405, 504-05 (1989)
20. T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 Mich L Rev 20, 21 (1988)
21. William D. Popkin, The Collaborative Model of Statutory Interpretation, 61 S Cal L Rev 541, 627 (1988)
22. Ronald Dworkin, Law's Empire 313-17 (Belknap 1986)
23. Guido Calabresi, A Common Law for the Age of Statutes 31-32 (Harvard 1982). Dynamic interpretation is now among the leading theories of statutory interpretation, along with textualism, intentionalism, purposivism, and pragmatism.
24. See William N. Eskridge Jr, Public Values in Statutory Interpretation, 137 U Pa L Rev 1007, 1094 (1989).
25. See also Levin, 54 Ala L Rev at 1285-86 (cited in note 14) (arguing for the prioritization of Constitution-based values because they arise from fundamental law that has past supermajoritarian support)
26. Sunstein, 103 Harv L Rev at 468 (cited in note 14) (arguing that the emphasis of constitutional values in the interpretation of statutes serves a onstitutionalnorm enforcing function).
27. Popular constitutionalism describes a broad public role in the construction and evolution of constitutional norms. See, for example, Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 7 (Oxford 2004)
28. Bruce Ackerman, We the People: Transformations 345-49 (Belknap 1998)
29. Robert C. Post and Reva B. Siegel, Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power, 78 Ind L J 1, 2 (2003).
30. William N. Eskridge Jr, Spinning Legislative Supremacy, 78 Georgetown L J 319, 343 (1989).
31. See Kevin M. Stack, The Divergence of Constitutional and Statutory Interpretation, 75 U Colo L Rev 1, 23-24 (2004) (articulating the underlying premises of legislative supremacy).
32. See Jerry Mashaw, Public Law and Public Choice: Critique and Rapprochement, in Daniel A. Farber and Anne Joseph O'Connell, eds, Research Handbook on Public Choice and Public Law 20- (Edward Elgar 2010)
33. Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government 18-19 (Princeton 2008).
34. See Jonathan R. Macey, Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223, 225 (1986).
35. See William N. Eskridge Jr, Dynamic Statutory Interpretation 48-49 (Harvard 1994).
36. Sunstein, 103 Harv L Rev at 414-33 (cited in note 14). Under the archaeological approach, the Court seeks to discover the intent or purposes of the enacting legislature. In the context of unforeseen circumstances, the Court should imaginatively reconstruct what the enacting legislature would have done if faced with the particular question.
37. See Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case W Res L Rev 179, 189-90 (1986). Under the public choice approach, statutes should not be interpreted to address circumstances outside the clear language of the statute.
38. Frank H. Easterbrook, Statutes' Domain, 50 U Chi L Rev 533, 540 (1983).
39. Eskridge, 135 U Pa L Rev at 1479 (cited in note 14).
40. See also Dworkin, Law's Empire at 313 (cited in note 14)
41. Calabresi, Common Law at 98 (cited in note 14).
42. Eskridge, 137 U Pa L Rev at 1008 (cited in note 15).
43. See also Sunstein, 103 Harv L Rev at 466 (cited in note 14) (suggesting, in a slightly different vein, that courts should look to the Constitution for "understandings about how statutory interpretation will improve or impair the performance of governmental institutions" and "an understanding of statutory function and failure").
44. See Eskridge, 137 U Pa L Rev at 1009 (cited in note 15)
45. See also Calabresi, Common Law at 99 (cited in note 14).
46. Eskridge, 137 U Pa L Rev at 1036 (cited in note 15).
47. See also Levin, 54 Ala L Rev at 1283 (cited in note 14)
48. Sunstein, 103 Harv L Rev at 468 (cited in note 14).
49. See Eskridge, 137 U Pa L Rev at 1051 (cited in note 15).
50. Calabresi, Common Law at 99 (cited in note 14).
51. Some advocates of a dynamic approach to interpreting ambiguous statutes in unforeseen contexts simply contend that the Court should look to values derived from the Constitution, statutes, and the common law without any explicit prioritization among the three sources. See, for example, Amanda L. Tyler, Continuity, Coherence, and the Canons, 99 Nw U L Rev 1389, 1434 (2005)
52. Edward O. Correia, A Legislative Conception of Legislative Supremacy, 42 Case W Res L Rev 1130, 1191 (1992)
53. Aleinikoff, 87 Mich L Rev at 59 (cited in note 14).
54. Eskridge, 137 U Pa L Rev at 1019 (cited in note 15).
55. See also Calabresi, Common Law at 99 (cited in note 14).
56. Eskridge, 137 U Pa L Rev at 1034 (cited in note 15).
57. Sunstein, 103 Harv L Rev at 466, 505 (cited in note 14) (noting that the Constitution is the "first and most straightforward" source of values).
58. Levin, 54 Ala L Rev at 1285-86 (cited in note 14)
59. citing Dworkin, Taking Rights Seriously at 111 (cited in note 14).
60. Levin, 54 Ala L Rev at 1286-87 (cited in note 14).
61. Compare Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 19 (Harvard 1997) (describing Article V as the exclusive mechanism for constitutional change)
62. with Jamal Greene, Selling Originalism, 97 Georgetown L J 657, 668 (2009) (arguing that Article V as the exclusive vehicle for constitutional change does not describe our actual constitutional practice).
63. US Const Art V (requiring two-thirds of both houses of Congress or two-thirds of the states to propose an amendment and three-quarters of the states to ratify it). 47 443 US 193 (1979).
64. Eskridge, 137 U Pa L Rev at 1034 (cited in note 15).
65. Weber, 443 US at 197 (holding that "Title VII does not prohibit [ ] race-conscious affirmative action plans [of private sector employers and unions]").
66. See also Eskridge, 137 U Pa L Rev at 1034 (cited in note 15) (stating that "Weber . . . illustrate[s] a broader way in which constitutional values may affect statutory interpretation").
67. See, for example, Kramer, The People Themselves at 227 (cited in note 18)
68. Robert C. Post and Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act,12 Yale L J 1943, 2020-23 (2003)
69. Post and Siegel, 78 Ind L J at 2 (cited in note 18)
70. Larry D. Kramer, The Supreme Court, 2000 Term- Foreword: We the Court, 115 Harv L Rev 4, 10-11 (2001)
71. Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U Pa L Rev 297, 300 (2001).
72. Post and Siegel, 78 Ind L J at 23 (cited in note 18).
73. See also Kramer, The People Themselves at 8 (cited in note 18) (explaining that, historically, "American constitutionalism assigned ordinary citizens a central and pivotal role in implementing their Constitution")
74. See Post and Siegel, 78 Ind L J at 23 (cited in note 18).
75. Ackerman, We the People: Transformations at 345-49 (cited in note 18)
76. Bruce Ackerman, The Living Constitution, 120 Harv L Rev 1737, 1761-88 (2007).
77. Bruce Ackerman, We the People: Foundations 266-67 (Belknap 1991).
78. See Ackerman, We the People: Transformations at 345-49 (cited in note 18)
79. Ackerman, 120 Harv L Rev at 1761-88 (cited in note 55).
80. See, for example, Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism after Garcia, 1985 S Ct Rev 341, 342.
81. Constitutional scholars have recognized that much of the function of constitutional interpretation involves the balancing and reconciliation of constitutional values. See, for example, Robert H. Bork, The Tempting of America: The Political Seduction of the Law 139 (Free Press 1990)
82. Louis Fisher, Constitutional Dialogues: Interpretation as Political Process 5 (Princeton 1988)
83. Owen M. Fiss, The Supreme Court, 1978 Term-Foreword: The Forms of Justice, 93 Harv L Rev 1, 10-11 (1979).
84. See David A. Strauss, The Modernizing Mission of Judicial Review, 76 U Chi L Rev 859, 863 n 8 (2009)
85. citing Roper v Simmons, 543 US 551, 574-75 (2005).
86. Departmentalists have argued for an approach to constitutional interpretation in which all three branches are involved in the development of the meaning of the Constitution. But they concede that over at least the past half-century the other political branches have deferred to the Court as being the ultimate interpreter of the Constitution. See, for example, Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Georgetown L J 217, 224-25 (1994).
87. Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History 7 (Princeton 2007).
88. Judicial supremacy has been a part of constitutional doctrine since the Supreme Court famously declared in Marbury v Madison, 5 US (1 Cranch) 137 (1803), that "[i]t is emphatically the province and duty of the judicial department to say what the law is."
89. see, for example, Kramer, 115 Harv L Rev at 89
90. (cited in note 52), the Court's elaboration of Marbury in Cooper v Aaron, 358 US 1 (1958)
91. as "declar[ing] the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution," Cooper, 358 US at 18, has been generally understood "as the moment when the Court truly declared itself the ultimate interpreter of the Constitution." Scott E. Gant, Judicial Supremacy and Nonjudicial Interpretation of the Constitution, 24 Hastings Const L Q 359, 369 (1997).
92. As described in the Federalist Papers, judicial independence is "an essential safeguard against the effects of occasional ill humors in the society." Federalist 78 (Hamilton), in The Federalist 521, 528 (Wesleyan 1961) (Jacob E. Cooke, ed).
93. See Bruce Ackerman, Transformative Appointments, 101 Harv L Rev 1164, 1166 (1988).
94. See also Lee Epstein, et al, Ideological Drift among Supreme Court Justices: Who, When, and How Important?, 101 Nw U L Rev 1483, 1485-86 (2007).
95. A median justice is one who lies "in the middle of a distribution of Justices, such that (in an ideological distribution, for example) half the Justices are to the right of (more 'conservative' than) the median and half are to the left of (more 'liberal' than) the median." Andrew D. Martin, Kevin M. Quinn, and Lee Epstein, The Median Justice on the United States Supreme Court, 83 NC L Rev 1275, 1277 (2005).
96. See also Duncan Black, On the Rationale of Group Decision- Making, 56 J Polit Econ 23, 26-28 (1948) (establishing the median voter theorem).
97. See Martin, Quinn, and Epstein, 83 NC L Rev at 1278 (cited in note 66) (explaining that "the legal policy desired by the median justice will . . . be the choice of the Court's majority")
98. Jack M. Balkin and Sanford Levinson, Understanding the Constitutional Revolution, 87 Va L Rev 1045, 1067 (2001) (developing a theory about how the Constitution evolves through changes in the Court's membership).
99. See Scott R. Meinke and Kevin M. Scott, Collegial Influence and Judicial Voting Change: The Effect of Membership Change on U.S. Supreme Court Justices, 41 L & Socy Rev 909, 914-15 (2007)
100. Charles Cameron, Jee-Kwang Park, and Deborah Beim, Shaping Supreme Court Policy through Appointments: The Impact of a New Justice, 93 Minn L Rev 1820, 1856-64 (2009) (finding direct and peer effects on the opinions of continuing justices after the addition of Justice Sandra Day O'Connor to the Court).
101. See Lee Epstein and Tonja Jacobi, Super Medians, 61 Stan L Rev 37, 54 (2008).
102. See Lawrence Baum, Membership Change and Collective Voting Change in the United States Supreme Court, 54 J Polit 3, 13-21 (1992). This second shift was the result of the replacement of liberal Justice Thurgood Marshall as the median justice in the 1968 term with moderate conservative Justice John Marshall Harlan as the median justice in the 1970 term.
103. See Epstein and Jacobi, 61 Stan L Rev at 54 (cited in note 69).
104. The Senate, which was intended to be the forum through which the public could influence the selection process, has proven to be particularly inept in ascertaining and judging the judicial philosophies of nominees. See Stephen Carter, The Confirmation Mess, 101 Harv L Rev 1185, 1195 (1988).
105. See Epstein and Jacobi, 61 Stan L Rev at 45 (cited in note 69) ("[A] rather large body of literature tells us that a single left-right dimension underlies virtually all Supreme Court cases in virtually all areas of law.").
106. See, for example, Katzenbach v Morgan, 384 US 641, 646 (1966) (upholding § 4(e) of the Voting Rights Act as a proper exercise of congressional authority under § 5 of the Fourteenth Amendment against a challenge that it usurped New York's authority to enforce its election laws)
107. South Carolina v Katzenbach, 383 US 301, 307-08, 323 (1966) (upholding the Voting Rights Act of 1965 as a proper exercise of congressional authority under § 2 of the Fifteenth Amendment against an argument by several states that it violated their right to implement and control elections).
108. See also Heart of Atlanta Motel, Inc v United States, 379 US 241, 261-62 (1964) (upholding the Civil Rights Act of 1964's prohibition on racial discrimination in public accommodations against a challenge that it exceeded Congress's Commerce Clause authority).
109. See, for example, City of Boerne v Flores, 521 US 507, 535-36 (1997)
110. (invalidating the federal Religious Freedom Restoration Act, Pub L No 103-141, 107 Stat 1488, codified as amended at 42 USC § 2000bb et seq (1997), because it exceeded Congress's enforcement authority under § 5 of the Fourteenth Amendment).
111. See also United States v Morrison, 529 US 598, 625-27 (2000)
112. (invalidating parts of the Violence Against Women Act, Pub L No 103-322, Title IV, 108 Stat 1902 (1994), codified in various sections of Titles 18 and 42, on the basis of the test established in City of Boerne).
113. See Cameron, Park, and Beim, 93 Minn L Rev at 1841 (cited in note 68) (describing as one of the extraordinary predictions of the median voter approach as applied to the Supreme Court that "majority opinion locations on a natural court do not vary irrespective of which Justice authored the opinion").
114. See Epstein and Jacobi, 61 Stan L Rev at 55-57 (cited in note 69) (finding that the mean during this period was 88.6 percent).
115. See Lee Epstein and Jack Knight, The Choices Justices Make 12-13 (CQ 1998).
116. See Cameron, Park, and Beim, 93 Minn L Rev at 1847-53 (cited in note 68) (describing author-influence theories that predict the preferences of the author of majority opinions will be reflected in the opinion and that therefore opinion assignments by the chief justice are extremely important).
117. Thomas H. Hammond, Chris W. Bonneau, and Reginald S. Sheehan, Strategic Behavior and Policy Choice on the U.S. Supreme Court 110-11 (Stanford 2005). I believe this model provides a more accurate description of voting behavior than other models suggesting that justices engage in a constant bidding war until the majority opinion reflects the preferences of the median justice, because of the combination of constraints on time and ideology as well as collegial pressures.
118. For a model that supports this account, see Hammond, Bonneau, and Sheehan, Strategic Behavior at 110-25 (cited in note 84).
119. See, for example, Flores, 521 US at 518-19 (interpreting Katzenbach v Morgan in a manner much more protective of federalism values than originally understood).
120. See, for example, Earl Maltz, The Nature of Precedent, 66 NC L Rev 367, 367-72 (1988)
121. Benjamin N. Cardozo, The Nature of the Judicial Process 149-50 (Yale 1921).
122. See Planned Parenthood v Casey, 505 US 833, 867-68 (1992) (describing the costs to the legitimacy of the Court when it overrules prior precedent "unnecessarily and under pressure")
123. Maltz, 66 NC L Rev at 371 (cited in note 87) (explaining that adherence to precedent reinforces the notion that "principles governing society should be 'rules of law and not merely the opinions of a small group of men who temporarily occupy high office'")
124. quoting Florida Department of Health v Florida Nursing Home Association, 450 US 147, 154 (1981) (Stevens concurring).
125. Confirmation Hearing on the Nomination of John G. Roberts Jr to Be Chief Justice of the United States, Senate Committee on the Judiciary, 109 Cong, 1st Sess 56 (2005) (reproducing a transcript of John Roberts's opening statement for his nomination proceedings).
126. See Cardozo, Nature of the Judicial Process at 150 (cited in note 87) ("The situation would [ ] be intolerable if the weekly changes in the composition of the court were accompanied by changes in its rulings.").
127. In Garcia v San Antonio Metropolitan Transit Authority, 469 US 528 (1985), the Court majority-which emerged after the ideological drift of Justice Harry Blackmun toward a less federalism-protective coalition-had stated that federalism norms were politically safeguarded by the representation of states and that Congress therefore had broad commerce clause authority
128. See, for example, Gregory v Ashcroft, 501 US 452, 470 (1991).
129. See, for example, Grutter v Bollinger, 539 US 306, 328 (2003) (holding that diversity is a compelling state interest justifying race-conscious admission decisions).
130. The Roberts Court's federalism decisions have thus far been somewhat inconsistent and have not broken down along typical ideological lines. For good summaries of the Roberts Court's federalism decisions, see John Dinan and Shama Gamkhar, The State of American Federalism 2008-2009: The Presidential Election, the Economic Downturn, and the Consequences for Federalism, 39 Publius 369, 394-98 (2009)
131. John Dinan, The State of American Federalism 2007-2008: Resurgent State Influence in the National Policy Process and Continued State Policy Innovation, 38 Publius 381, 401-10 (2008).
132. Edward J. DeBartolo Corp v Florida Gulf Coast Building and Construction Trades Council, 485 US 568, 575 (1988).
133. See Adrian Vermeule, Saving Constructions, 85 Georgetown L J 1945, 1949 (1997).
134. Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum L Rev 1189, 1203 (2006).
135. Proponents of the modern avoidance canon have suggested that it serves as an important and legitimate means by which the Court enforces the fundamental values underlying the Constitution. See, for example, Philip P. Frickey, Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court, 93 Cal L Rev 397, 402 (2005)
136. Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 Tex L Rev 1549, 1552 (2000). Opponents have suggested that the canon is primarily used by the Court to enforce its preferred views of the Constitution through its interpretation of ambiguous (and sometimes, unambiguous) statutes.
137. See, for example, Lisa A. Kloppenberg, Does Avoiding Constitutional Questions Promote Judicial Independence?, 56 Case W Res L Rev 1031, 1038 (2006) (suggesting that the Court often uses the canon to enforce its views of the Constitution)
138. William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 Cornell L Rev 831, 861 (2001) (suggesting that the sub silentio constitutional lawmaking through the modern avoidance canon is problematic).
139. See Morrison, 106 Colum L Rev at 1208 (cited in note 95).
140. See, for example, Zadvydas v Davis, 533 US 678, 682 (2001).
141. See Gregory, 501 US at 464.
142. This is the classic constitutional avoidance canon. See Vermeule, 85 Georgetown L J at 1949 (cited in note 94)
143. William N. Eskridge Jr and Philip P. Frickey, Quasi-constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand L Rev 593, 598-99 (1992).
144. See William N. Eskridge Jr and Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan L Rev 321, 363-64 (1990).
145. See Vermeule, 85 Georgetown L J at 1949 (cited in note 94).
146. See Correia, 42 Case W Res L Rev at 1130 (cited in note 37)
147. Eskridge, 78 Georgetown L J at 326-27 (cited in note 21).
148. Consider Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Georgetown L J 281, 317-18 (1989).
149. See, for example, Correia, 42 Case W Res L Rev at 1129, 1132 (cited in note 37)
150. Earl M. Maltz, Statutory Interpretation and Legislative Power: The Case for a Modified Intentionalist Approach, 63 Tulane L Rev 1, 9 (1988). In addition to these formal Article I accounts of the source of legislative supremacy, John Manning argues that the faithful-agent theory of legislative supremacy follows from the constitutional separation of powers and the bicameralism and presentment requirements of Article I, § 7 of the Constitution, which he argues are inconsistent with broad judicial lawmaking and discretion in the interpretation of statutes
151. John F. Manning, Textualism and the Equity of the Statute, 101 Colum L Rev 1, 57-78 (2001).
152. See Martin H. Redish and Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 Tulane L Rev 803, 811 (1994).
153. See Eskridge, 78 Georgetown L J at 323-24 (cited in note 21).
154. See generally William N. Eskridge Jr, All about Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 Colum L Rev 990 (2001).
155. See, for example, Michael J. Perry, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary 28 n * (Yale 1982).
156. The possibility of overrides is also a reason that scholars have paid relatively little attention to the concerns of countermajoritarianism in the context of statutory interpretation. See Lawrence C. Marshall, "Let Congress Do It": The Case for an Absolute Rule of Stare Decisis, 88 Mich L Rev 177, 204 (1989).
157. Glendon A. Schubert, Constitutional Politics: The Political Behavior of Supreme Court Justices and the Constitutional Policies That They Make 258 (Holt, Rinehart and Winston 1960).
158. See Nancy C. Staudt, René Lindstädt, and Jason O'Connor, Judicial Decisions as Legislation: Congressional Oversight of Supreme Court Tax Cases, 1954-2005, 82 NYU L Rev 1340, 1353-54 (2007) (finding that only 8 percent of the tax cases heard by the Supreme Court were overridden by Congress)
159. Virginia A. Hettinger and Christopher Zorn, Explaining the Incidence and Timing of Congressional Responses to the U.S. Supreme Court, 30 Legis Stud Q 5, 10 (2005) (finding an override rate of only 6.9 percent among civil rights and civil liberties cases decided from 1967 to 1989)
160. Michael E. Solimine and James L. Walker, The Next Word: Congressional Response to Supreme Court Statutory Decisions, 65 Temple L Rev 425, 445 (1992) (finding that Congress overrode Supreme Court decisions most often in the immediate wake of those decisions but that it only did so successfully ranging from 5.4 percent in federalism cases to 26.8 percent in economic regulation cases)
161. Beth Henschen, Statutory Interpretation of the Supreme Court: Congressional Response, 11 Am Polit Rsrch 441, 445 (1983) (finding that only 12 percent of labor and antitrust cases were overridden by Congress from 1950 to 1970).
162. But see Jeb Barnes, Overruled? Legislative Overrides, Pluralism, and Contemporary Court-Congress Relations 43 (Stanford 2004).
163. See William N. Eskridge Jr, Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 Cal L Rev 613, 643-64 (1991) (describing the anticipatory-response game).
164. For variations of the anticipated-response game model, see John A. Ferejohn and Barry R. Weingast, A Positive Theory of Statutory Interpretation, 12 Intl Rev L & Econ 263, 265 (1992)
165. John Ferejohn and Charles Shipan, Congressional Influence on Bureaucracy, 6 J L, Econ, & Org 1, 5-6 (1990).
166. A congressional committee can "kill" legislation by "rewrit[ing] the bill entirely, reject[ing] it, or simply refus[ing] to consider it." Oleszek, Congressional Procedures at 89 (cited in note 12).
167. Eskridge, 79 Cal L Rev at 644 (cited in note 113).
168. See, for example, Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited 345-48 (Cambridge 2002)
169. Jeffrey Segal, Chad Westerland, and Stefanie A. Lindquist, Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model *23 (unpublished manuscript, Nov 2007), online at http://ssrn.com/abstract=998164 (visited May 9, 2011)
170. James F. Spriggs II and Thomas G. Hansford, Explaining the Overruling of U.S. Supreme Court Precedent, 63 J Polit 1091, 1107 (2001)
171. Jeffrey A. Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 Am Polit Sci Rev 28, 33-34 (1997).
172. See also Jeffrey A. Segal and Chad Westerland, The Supreme Court, Congress, and Judicial Review, 83 NC L Rev 1323, 1334 (2005) (citing additional scholarship finding no support for the separation of powers model).
173. But see Mario Bergara, Barak Richman, and Pablo T. Spiller, Modeling Supreme Court Strategic Decision Making: The Congressional Constraint, 28 Legis Stud Q 247, 262-63 (2003)
174. Barry Friedman and Anna L. Harvey, Electing the Supreme Court, 78 Ind L J 123, 139 (2003)
175. Pablo T. Spiller and Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor- Relations Decisions, 1949-1988, 23 RAND J Econ 463, 484 (1992).
176. See Segal and Spaeth, Attitudinal Model Revisited at 399-403, 424-28 (cited in note 120).
177. See Segal, 91 Am Polit Sci Rev at 34-35 (cited in note 120) (noting that "there are obvious problems in assuming that both Democrats (e.g. Brennan and Jackson) and Republicans (e.g. Warren and Scalia) on the Court are homogenous" for the purposes of this model).
178. For an example of categorization according to the nominating President's party identification, see Spiller and Gely, 23 Rand J Econ at 491 (cited in note 120).
179. These scores were derived from a content analysis of major newspaper editorials about the justices from point of nomination to confirmation. See Jeffrey A. Segal and Albert D. Cover, The Ideological Values and the Votes of U.S. Supreme Court Justices, 83 Am Polit Sci Rev 557, 559-60 (1989).
180. Segal, 91 Am Polit Sci Rev at 42 (cited in note 120). Later studies found similar results.
181. See, for example, Hettinger and Zorn, 30 Legis Stud Q at 21 (cited in note 112)
182. Segal and Spaeth, Attitudinal Model Revisited at 348 (cited in note 120);
183. Spriggs and Hansford, 63 J Polit at 1107 (cited in note 120).
184. But see Bergara, Richman, and Spiller, 28 Legis Stud Q at 267 (cited in note 120).
185. Segal, 91 Am Polit Sci Rev at 37-38 (cited in note 120).
186. See Code of Conduct for United States Judges, Canons 1-2 (2009) (providing that judges should "uphold the integrity and independence of the judiciary" and "avoid impropriety and the appearance of impropriety in all activities").
187. See also Mike McIntire, The Justice and the Magnate, NY Times A1 (June 19, 2011) ("Although the Supreme Court is not bound by the code, justices have said they adhere to it.").
188. See Code of Conduct for Judicial Employees, Canons 1-2 (2009) (providing the same ethical guidelines as for judges).
189. See also Rule 2.12(A): Supervisory Duties, ABA Model Code of Judicial Conduct Canon 2 (2009) (requiring court staff to act in manner consistent with Code).
190. The conventional account of the reason for the infrequency of legislative overrides is therefore more likely to be accurate. Under that account, legislative overrides are rare because Congress may not be aware of the Supreme Court interpretation of a statute. See, for example, Marshall, 88 Mich L Rev at 186 (cited in note 110). Even when it is aware, congressional inaction may reflect the difficulty of getting override legislation-even legislation consistent with the preferences of the majority of the legislators and the President-through a busy legislative process that is oriented toward maintaining the status quo.
191. See Cass R. Sunstein, The Partial Constitution 170-72 (Harvard 1993) (observing that endowment effects create legislative status quo bias).
192. See, for example, Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 383 (Farrar, Straus and Giroux 2009)
193. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 21 (Chicago 2d ed 2008)
194. Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J Pub L 279, 293 (1957).
195. But see Richard H. Pildes, Is the Supreme Court a 'Majoritarian' Institution?, 2010 S Ct Rev 103, 105-06.
196. See Peter F. Dunne, Mr. Dooley's Opinions 26 (R.H. Russell 1901).
197. See, for example, Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw U L Rev 269, 272 (1993)
198. William Mishler and Reginald S. Sheehan, The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 Am Polit Sci Rev 87, 98 (1993).
199. See Federalist 78 (Hamilton), in The Federalist 521, 527-29 (cited in note 64).
200. See Vicki C. Jackson, Packages of Judicial Independence: The Selection and Tenure of Article III Judges, 95 Georgetown L J 965, 978 (2007).
201. Commentators are nearly unanimous in the view that the confirmation process is ineffective in bringing the philosophy or values of judicial appointees into public view. See, for example, Ackerman, 101 Harv L Rev at 1168 (cited in note 65)
202. Carter, 101 Harv L Rev at 1195 (cited in note 72) ("The Senate may lack the institutional capacity to evaluate judicial philosophy in any non trivial theoretical sense.")
203. Elena Kagan, Book Review, Confirmation Messes, Old and New, 62 U Chi L Rev 919, 941-42 (1995).
204. US Const Art III, § 1.
205. Dahl, 6 J Pub L at 285 (cited in note 131).
206. See Richard Funston, The Supreme Court and Critical Elections, 69 Am Polit Sci Rev 795, 806-07 (1975).
207. See Pildes, 2010 S Ct Rev at 140 (cited in note 131)
208. Steven G. Calabresi and James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harv J L & Pub Pol 769, 771 (2006).
209. James E. DiTullio and John B. Schochet, Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms, 90 Va L Rev 1093, 1101 (2004). While the extent of strategic retirements is empirically debatable, they may increasingly be part of the justices' calculations as members of the Court. Based on an empirical analysis, Keith Krehbiel finds that support for the strategic retirement hypothesis is weak.
210. See Keith Krehbiel, Supreme Court Appointments as a Move-the-Median Game, 51 Am J Polit Sci 231, 238 (2006). The study does not, however, account for unsuccessful attempts by justices to remain on the bench until a President of their party can appoint their successors. Also, the study fails to account for the desire of Republican nominees such as Harry Blackmun to be replaced by a Democratic appointment.
211. See DiTullio and Schochet, 90 Va L Rev at 1103-04 (cited in note 143).
212. See William Mishler and Reginald S. Sheehan, Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-analytic Perspective, 58 J Polit 169, 194 (1996)
213. Mishler and Sheehan, 87 Am Polit Sci Rev at 96 (cited in note 133).
214. Mishler and Sheehan, 58 J Polit at 173 (cited in note 145).
215. See also Kevin T. McGuire and James A. Stimson, The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences, 66 J Polit 1018, 1019 (2004).
216. William Mishler and Reginald Sheehan also advance a "political conversion" hypothesis in which public opinion "may stimulate a change in that justice's thinking thereby influencing the justice's behavior." Mishler and Sheehan, 58 J Polit at 175 (cited in note 145). This line of argument is similar to the one put forward by legal scholars responding to the countermajoritarian difficulty.
217. See Friedman, The Will of the People at 370-71 (cited in note 131).
218. See Mishler and Sheehan, 58 J Polit at 174 (cited in note 145).
219. See, for example, Friedman, The Will of the People at 374-76 (cited in note 131).
220. But see Pildes, 2010 S Ct Rev at 158 (cited in note 131).
221. See Mishler and Sheehan, 87 Am Polit Sci Rev at 96 (cited in note 133)
222. Mishler and Sheehan, 58 J Polit at 194 (cited in note 145)
223. Michael W. Link, Tracking Public Mood in the Supreme Court: Cross-Time Analyses of Criminal Procedure and Civil Rights Cases, 48 Polit Res Q 61, 72-73 (1996)
224. Robert S. Erikson, Michael B. MacKuen, and James A. Stimson, The Macro Polity 313 (Cambridge 2001).
225. But see Helmut Norpoth and Jeffrey A. Segal, Popular Influence on Supreme Court Decisions, 88 Am Polit Sci Rev 711, 713-14 (1994).
226. See, for example, Erikson, MacKuen, and Stimson, The Macro Polity at 313-14 (cited in note 151).
227. Id. See also McGuire and Stimson, 66 J Polit at 1022 (cited in note 148)
228. Mishler and Sheehan, 58 J Polit at 187-95 (cited in note 145).
229. Dahl, 6 J Pub L at 285 (cited in note 131).
230. Hanna Fenichel Pitkin, The Concept of Representation 209 (California 1972).
231. See, for example, R. Douglas Arnold, The Logic of Congressional Action 37 (Yale 1990)
232. John W. Kingdon, Congressmen's Voting Decisions 31 (Michigan 3d ed 1989)
233. David R. Mayhew, Congress: The Electoral Connection 37-38 (Yale 1974)
234. Richard F. Fenno Jr, Congressmen in Committees 1 (Little, Brown 1973)
235. Aage R. Clausen, How Congressmen Decide: A Policy Focus 2 (St Martin's 1973).
236. See Federalist 10 (Madison), in The Federalist 56, 62 (cited in note 64).
237. For an elaboration of the pluralist model, see Daniel A. Farber and Philip P. Frickey, The Jurisprudence of Public Choice, 65 Tex L Rev 873, 875 (1987)
238. Robert A. Dahl, Who Governs? 271-73 (Yale 1961)
239. Robert A. Dahl, A Preface to Democratic Theory 124-51 (Chicago 1956)
240. Earl Latham, The Group Basis of Politics: A Study in Basing-Point Legislation 7 (Cornell 1952)
241. David B. Truman, The Governmental Process: Political Interests and Public Opinion 56-62 (Knopf 1951).
242. See also Kay Lehman Schlozman and John T. Tierney, Organized Interests and American Democracy 7-8 (Harper & Row 1986).
243. William N. Eskridge Jr, Politics without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 Va L Rev 275, 322 (1988). The dynamic theory's public choice account of the political process generally does not take into account the more sophisticated and complex modern incarnations of public choice theory.
244. See Daniel A. Farber and Anne Joseph O'Connell, Introduction: A Brief Trajectory of Public Choice and Public Law, in Daniel A. Farber and Anne Joseph O'Connell, eds, Research Handbook on Public Choice and Public Law 1, 4-6 (Edward Elgar 2010) (describing the trajectory of public choice theory).
245. See Croley, Regulation and Public Interests at 18-19 (cited in note 23)
246. Mancur Olson Jr, The Logic of Collective Action 46-48 (Harvard 1965).
247. See also Richard A. Posner, Economic Analysis of Law 496-98 (1977)
248. James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy 220-22 (Michigan 1962).
249. See Croley, Regulation and Public Interest at 19 (cited in note 23)
250. Farber and Frickey, 65 Tex L Rev at 892 (cited in note 159).
251. See William M. Landes and Richard A. Posner, The Independent Judiciary in an Interest- Group Perspective, 18 J L & Econ 875, 877 (1975).
252. See Farber and Frickey, 65 Tex L Rev at 878 (cited in note 159).
253. But see Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L Rev 1217, 1250 (2006) (citing studies suggesting that campaign contributions merely provide interest groups access to legislators rather than influence the vote of legislators).
254. See, for example, Kay Lehman Schlozman, What Accent the Heavenly Chorus? Political Equality and the American Pressure System, 46 J Polit 1006, 1011 (1984) (finding that "the pressure system is heavily weighted in favor of business organizations")
255. Richard A. Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 U Chi L Rev 263, 269 (1982) (explaining that "interest group theory does not deny the possibility that a large group . . . occasionally might procure legislation on its own behalf" and describing certain statutes that belong in the public interest category and others that belong in the interest group category).
256. See Eskridge, 74 Va L Rev at 305 (cited in note 160).
257. William N. Eskridge Jr, Politics without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 Va L Rev 275, 322 (1988). The dynamic theory's public choice account of the political process generally does not take into account the more sophisticated and complex modern incarnations of public choice theory.
258. See Daniel A. Farber and Anne Joseph O'Connell, Introduction: A Brief Trajectory of Public Choice and Public Law, in Daniel A. Farber and Anne Joseph
259. See Croley, Regulation and Public Interests at 18-19 (cited in note 23)
260. Mancur Olson Jr, The Logic of Collective Action 46-48 (Harvard 1965).
261. See also Richard A. Posner, Economic Analysis of Law 496-98 (1977)
262. James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy 220-22 (Michigan 1962).
263. See Croley, Regulation and Public Interest at 19 (cited in note 23)
264. Farber and Frickey, 65 Tex L Rev at 892 (cited in note 159).
265. See William M. Landes and Richard A. Posner, The Independent Judiciary in an Interest- Group Perspective, 18 J L & Econ 875, 877 (1975).
266. See Farber and Frickey, 65 Tex L Rev at 878 (cited in note 159).
267. But see Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L Rev 1217, 1250 (2006) (citing studies suggesting that campaign contributions merely provide interest groups access to legislators rather than influence the vote of legislators).
268. See, for example, Kay Lehman Schlozman, What Accent the Heavenly Chorus? Political Equality and the American Pressure System, 46 J Polit 1006, 1011 (1984) (finding that "the pressure system is heavily weighted in favor of business organizations")
269. Richard A. Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 U Chi L Rev 263, 269 (1982) (explaining that "interest group theory does not deny the possibility that a large group . . . occasionally might procure legislation on its own behalf" and describing certain statutes that belong in the public interest category and others that belong in the interest group category).
270. See Eskridge, 74 Va L Rev at 305 (cited in note 160)
271. See Lee Epstein, William M. Landes, and Richard A. Posner, Is the Roberts Court Pro-business? *1-2 (unpublished manuscript, Dec 2010), online at http://www.scribd.com/doc/50720643/EPSTEINLANDES-POSNER-Is-the-Roberts-Court- Pro-Business (visited May 11, 2011).
272. See Eskridge, 74 Va L Rev at 304 (cited at note 160).
273. See Farber and O'Connell, A Brief Trajectory at 1 (cited in note 160) ("Public choice theory plays a critical role in public law, particularly for legal scholarship and to some extent for doctrine.").
274. See, for example, Croley, Regulation and Public Interests at 38-47 (cited in note 23)
275. Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law 32-36 (Yale 1997)
276. Daniel Shaviro, Beyond Public Choice and Public Interest: A Study of the Legislative Process as Illustrated by Tax Legislation in the 1980s, 139 U Pa L Rev 1, 7 (1990)
277. Mark Kelman, On Democracy-Bashing: A Skeptical Look at the Theoretical and "Empirical" Practice of the Public Choice Movement, 74 Va L Rev 199, 217-20 (1988)
278. Farber and Frickey, 65 Tex L Rev at 893-94, (cited in note 159)
279. Michael T. Hayes, Lobbyists and Legislators: A Theory of Political Markets 44-53 (Rutgers 1981).
280. See, for example, Croley, Regulation and Public Interests at 45-47 (cited in note 23)
281. Mashaw, Public Law and Public Choice at 35 (cited in note 23).
282. Croley, Regulation and Public Interests at 40-44 (cited in note 23).
283. Jonathan Macey and others have argued that even under the public choice-theoretic account, legislators will articulate broader public-regarding purposes for special interest statutes that are inconsistent with the special interest goals. See Macey, 86 Colum L Rev at 251-53 (cited in note 24).
284. See also Posner, Economic Analysis of Law at 586-87 (cited in note 161). The analysis here builds on these contributions.
285. VRA Reauthorization Act of 2006 Senate Committee Report, S Rep No 102-295 at 2 (cited in note 7) (describing the purpose of the Voting Rights Act).
286. Macey, 86 Colum L Rev at 232-33 (cited in note 24).
287. The public choice account implicitly relies on the premise that the unorganized public consists of politically apathetic, ignorant individuals. This assumption is derived from the theory of rational-voter apathy first developed by Anthony Downs in the 1950s. See Anthony Downs, An Economic Theory of Democracy 38-50 (Harper & Brothers 1957).
288. See Paul F. Lazarsfeld, Bernard Berelson, and Hazel Gaudet, The People's Choice: How the Voter Makes Up His Mind in a Presidential Campaign 120-29 (Columbia 3d ed 1968).
289. See Tien-Tsung Lee and Lu Wei, How Newspaper Readership Affects Political Participation, 29 Newspaper Rsrch J 8, 9 (Summer 2008)
290. Stephen Ansolabehere and Shanto Iyengar, Going Negative: How Attack Ads Shrink and Polarize the Electorate 1 (Free Press 1995).
291. See Ansolabehere and Iyengar, Going Negative at 52-54 (cited in note 180) (showing evidence that despite the opportunity to channel surf, political advertisements reach "uniniterested and unmotivated citizens [ ] who ordinarily pay little attention to news reports, debates, and other campaign events").
292. See Larry M. Bartels, Messages Received: The Political Impact of Media Exposure, 87 Am Polit Sci Rev 267, 267 (1993) (citing and quoting studies finding a minimal effect of media on voting).
293. See Thomas E. Patterson and Robert D. McClure, The Unseeing Eye: The Myth of Television Power in National Politics 21-24 (Paragon 1976).
294. See also Ansolabehere and Iyengar, Going Negative at 60 (cited in note 180) (explaining that because of individuals' short attention span for political information, "The brevity of the advertising message may actually strengthen its information value" and that voters prefer information that is easy to digest and simple to obtain).
295. See Paul Freedman, Michael Franz, and Kenneth Goldstein, Campaign Advertising and Democratic Citizenship, 48 Am J Polit Sci 723, 726 (2004)
296. Craig Leonard Brians and Martin P. Wattenberg, Campaign Issue Knowledge and Salience: Comparing Reception from TV Commercials, TV News and Newspapers, 40 Am J Polit Sci 172, 172 (1996)
297. Ansolabehere and Iyengar, Going Negative at 38-39 (cited in note 180)
298. Marion Just, Ann Crigler, and Lori Wallach, Thirty Seconds or Thirty Minutes: What Viewers Learn from Spot Advertisements and Candidate Debates, 40 J Communication 120, 127 (1990).
299. But see Gregory A. Huber and Kevin Arceneaux, Identifying the Persuasive Effects of Presidential Advertising, 51 Am J Polit Sci 957, 965 (2007).
300. Freedman, Franz, and Goldstein, 48 Am J Polit Sci at 725 (cited in note 187).
301. See Ansolabehere and Iyengar, Going Negative at 54-55 (cited in note 180) (finding initial results but diminishing returns in advertising).
302. See, for example, Steven E. Finkel and John G. Geer, A Spot Check: Casting Doubt on the Demobilizing Effect of Attack Advertising, 42 Am J Polit Sci 573, 577 (1998).
303. See Ansolabehere and Iyengar, Going Negative at 99-109 (cited in note 180).
304. For findings that negative advertisements have a mobilizing effect, see Freedman, Franz, and Goldstein, 48 Am J Polit Sci at 732-33 (cited in note 187)
305. Paul S. Martin, Inside the Black Box of Negative Campaign Effects: Three Reasons Why Negative Campaigns Mobilize, 25 Polit Psych 545, 552-57 (2004)
306. Ken Goldstein and Paul Freedman, Campaign Advertising and Voter Turnout: New Evidence for a Stimulation Effect, 64 J Polit 721, 733-35 (2002)
307. Richard R. Lau and Gerald M. Pomper, Effects of Negative Campaigning on Turnout in US Senate Elections, 1988-1998, 63 J Polit 804, 816-17 (2001)
308. Kim Fridkin Kahn and Patrick J. Kenney, Do Negative Campaigns Mobilize or Suppress Turnout? Clarifying the Relationship between Negativity and Participation, 93 Am Polit Sci Rev 877, 883 (1999)
309. Paul Freedman and Ken Goldstein, Measuring Media Exposure and the Effects of Negative Campaign Ads, 43 Am J Polit Sci 1189, 1202 (1999). For findings that negative advertisements do not have a demobilizing effect on voters
310. see Deborah Jordan Brooks, The Resilient Voter: Moving toward Closure in the Debate over Negative Campaigning and Turnout, 68 J Polit 684, 691-92 (2006)
311. Martin P. Wattenberg and Craig Leonard Brians, Negative Campaign Advertising: Demobilizer or Mobilizer?, 93 Am Polit Sci Rev 891, 892-95 (1999)
312. Richard R. Lau, et al, The Effects of Negative Political Advertisements: AMeta-analytic Assessment, 93 Am Polit Sci Rev 851, 858 (1998)
313. Finkel and Geer, 42 Am J Polit Sci at 584 (cited in note 190).
314. See Arnold, The Logic of Congressional Action at 30 (cited in note 157) (noting the role of a political instigator in mobilizing previously inattentive publics).
315. This argument is borne out by studies showing that the public perceives elected officials as generally being responsive to their preferences in their roll call votes and enacted policies. See, for example, Erikson, MacKuen, and Stimson, The Macro Polity at 316 (cited in note 151)
316. Robert S. Erikson, Gerald C. Wright, and John P. McIver, Statehouse Democracy: Public Opinion and Policy in the American States 78, 80-81 (Cambridge 1993)
317. Benjamin I. Page and Robert Y. Shapiro, Effects of Public Opinion on Policy, 77 Am Polit Sci Rev 175, 179 (1983).
318. But see Alan D. Monroe, Public Opinion and Public Policy, 1980-1993, 62 Pub Opinion Q 6, 12-13 (1998)
319. Warren E. Miller and Donald E. Stokes, Constituency Influence in Congress, 57 Am Polit Sci Rev 45, 48 (1963). For a discussion of the limitations of the studies
320. see Benjamin Page, The Semi-sovereign Public, in Jeff Manza, Fay Lomax Cook, and Benjamin I. Page, eds, Navigating Public Opinion 325, 326 (Oxford 2002)
321. Paul Burstein, Why Estimates of the Impact of Public Opinion on Public Policy Are Too High: Empirical and Theoretical Implications, 84 Soc Forces 2273, 2286 (2006).
322. See Amanda Frost, Certifying Questions to Congress, 101 Nw U L Rev 1, 24-25 (2007)
323. Elhauge, Statutory Default Rules at 8 (cited in note 14).
324. Frost, 101 Nw U L Rev at 6-8 (cited in note 195).
325. See James W. Stoutenborough, Donald P. Haider-Markel, and Mahalley D. Allen, Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases, 59 Polit Rsrch Q 419, 420 (2006) (citing studies showing that "the public is poorly informed about the Court"). For a classic account
326. see Walter F. Murphy and Joseph Tanenhaus, Public Opinion and the United States Supreme Court: Mapping of Some Prerequisites for Court Legitimation of Regime Changes, 2 L & Socy Rev 357, 360-64 (1968) (finding from a survey that the political salience of Supreme Court decisions is low).
327. Frost, 101 Nw U L Rev at 6 (cited in note 195).
328. Elhauge, Statutory Default Rules at 4 (cited in note 14).
329. See, for example, Andrus v Shell Oil Co, 446 US 657, 666 n 8 (1980).
330. For an illuminating account on the background of Bob Jones, see generally Olatunde Johnson, The Story of Bob Jones University v. United States: Race, Religion, and Congress' Extraordinary Acquiescence, in William N. Eskridge Jr, Philip P. Frickey, and Elizabeth Garrett, eds, Statutory Interpretation Stories 127 (Foundation 2011).
331. Bob Jones, 461 US at 577.
332. Bob Jones, 461 US at 580-82.
333. Bob Jones, 461 US at 594.
334. Eskridge, 137 U Pa L Rev at 1019 (cited in note 15).
335. See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv L Rev 1212, 1213 (1978).
336. See also Sunstein, 103 Harv L Rev at 469 (cited in note 14) (describing a function of the avoidance canon as strengthening judicially underenforced constitutional norms).
337. Sager, 91 Harv L Rev at 1220-26 (cited in note 218).
338. See Young, 78 Tex L Rev at 1604-06 (cited in note 95)
339. Frickey, 93 Cal L Rev at 402 (cited in note 95).
340. See Young, 78 Tex L Rev at 1593-96 (cited in note 95).
341. See Sager, 91 Harv L Rev at 1218-20 (cited in note 218). These contrasting positions demonstrate that whether a particular constitutional norm is underenforced, and specifically whether statutes intrude into constitutionally sensitive areas, can often depend on one's views about the importance of that particular norm.
342. Young, 78 Tex L Rev at 1603 (cited in note 95).
343. Sager, 91 Harv L Rev at 1227 (cited in note 218).
344. See Frederick Schauer, Ashwander Revisited, 1995 S Ct Rev 71, 88
345. Alexander M. Bickel and Harry H. Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv L Rev 1, 34 (1957).
346. Lisa A. Kloppenberg, Avoiding Serious Constitutional Doubts: The Supreme Court's Construction of Statutes Raising Free Speech Concerns, 30 UC Davis L Rev 1, 19-20 (1996).
347. Young, 78 Tex L Rev at 1581 (cited in note 95).
348. Such an objection is implicit in one of Sunstein's arguments for prioritizing Constitutionbased values. He argues that "pushing statutes away from constitutionally troublesome ground [ ] provides a way for courts to vindicate constitutionally based norms and does so in a way that is less intrusive than constitutional adjudication." Sunstein, 103 Harv L Rev at 468 (cited in note 14).
349. Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U Chi L Rev 174, 177 (1988).
350. See also Brian K. Landsberg, Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules, 66 Tenn L Rev 925, 925 (1999)
351. Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw U L Rev 100, 105 (1985)
352. Henry P. Monaghan, The Supreme Court, 1974 Term-Foreword: Constitutional Common Law, 89 Harv L Rev 1, 21 (1975).
353. See also Grano, 80 Nw U L Rev at 106 (cited in note 233).
354. Landsberg, 66 Tenn L Rev at 925 (cited in note 233).
355. Monaghan, 89 Harv L Rev at 21 (cited in note 233). Prophylactic rules also seek to prevent hard-to-detect constitutional violations because of the difficulty, for example, of ascertaining official motive or intent.
356. See Grano, 80 Nw U L Rev at 105 (cited in note 233)
357. David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U Chi L Rev 190, 200 (1988).
358. Consider Samuel L. Bray, Power Rules, 110 Colum L Rev 1172, 1173 & n 3 (2010) (situating prophylactic rules within the broader category of power rules). This function does not seem particularly applicable in the statutory interpretation context.
359. See Vermeule, 85 Georgetown L J at 1949 (cited in note 94) (distinguishing between the modern and classic avoidance canons).
360. Landsberg, 66 Tenn L Rev at 958 (cited in note 233).
361. See also Grano, 80 Nw U L Rev at 123 (cited in note 233).
362. Residential integration is likely to continue, and despite the inspiring election of an African American to the presidency, the trends underlying his election as well as the reaction to his presidency indicate that racially polarized voting will continue to be an obstacle to minority representation in the political process. See Ansolabehere, Persily, and Stewart, 123 Harv L Rev at 1435 (cited in note 2).
363. See, for example, Bartlett, 129 S Ct at 1247-48
364. Parents Involved in Community Schools v Seattle School District No 1, 551 US 701, 747-48 (2007) (plurality).
365. See, for example, Ricci v DeStefano, 129 S Ct 2658, 2676 (2009)
366. Northwest Austin Municipal Utility District Number One v Holder, 129 S Ct 2504, 2511-12 (2009).