Congressional End-Run: The Ignored Constraint on Judicial Review

This Article identifies an untended connection betweenthe research of legal academics and political scientists. Itexplains how recent developments in constitutional theory,when read in good light, expose a gap in the judicialpolitics literature on Supreme Court decision making. Thegap is the "congressional end-run."End-runs occur when Congress mitigates the policy costof adverse judicial review through neither formal limits onthe Court's autonomy nor substitution of its constitutional interpretationfor that of the Court, but through a differentdecision which cannot, as a practical if not legal matter,be invalidated by the Court. End-runs come in severalforms, including congressional decisions to grantauthority to the Executive Branch, to adjustappropriations,to modify certain contingent laws, and toreorient legislation in alternate constitutional clauses.Ignored by political scientists, end-runs undoubtedlyconstrain the judicial decision making of the strategicJustices assumed by judicial politics scholars.This Article calls on judicial politics scholars toincorporate the end-run into their formal SOP models andrelated empirical studies.

Such incorporation promises togive political scientists a fuller sense of how their strategicJustices interact with Congress in our constitutionaldemocracy.