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, expose a gap in the judicial
politics literature on Supreme Court decision making. The
gap is the "congressional end-run."
End-runs occur when Congress mitigates the policy cost
of adverse judicial review through neither formal limits on
the Court's autonomy nor substitution of its constitutional
interpretationfor 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 decision making 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
Milligan, Luke M.
"Congressional End-Run: The Ignored Constraint on Judicial Review,"
Georgia Law Review: Vol. 45:
1, Article 4.
Available at: https://digitalcommons.law.uga.edu/glr/vol45/iss1/4