When Congress speaks, does the Supreme Court listen? Evaluating the effectiveness of Congressional participation as amicus curiae before the U.S. Supreme Court during the Rehnquist Court.

I. INTRODUCTIONA. Congress-Court Relations During the Rehnquist CourtThe Rehnquist Court (OT1986-OT2005) has been described as an ideologically divided Court with two blocs of stalwarts (a conservative bloc and a liberal bloc) and with Justice O'Connor as the pivotal swing vote.1 The Rehnquist Court was also known for its (conservative) activism.2 Professor Cass Sunstein noted that its first seventy-five years, the Supreme Court struck down only two acts of Congress. In the eighteen years since Ronald Reagan nominated William H. Rehnquist as Chief Justice, the Court has invalidated more than three dozen. Under Rehnquist, the Court has compiled a record of judicial activism that is, in some ways, without parallel in the nation's history.3 Professor Mark Tushnet argued that on the Rehnquist Court:Everyone is a judicial activist. The Rehnquist Court has invalidated laws whose constitutionality was clear under longestablished doctrine, using novel analyses that it has sometimes acknowledged cannot be tied closely to the Constitution's text or original understandings. In addition, the Rehnquist Court has asserted, more strongly than the Warren a primary role in enforcing the legal boundaries Congress has to respect, so much so that two respected scholars have written an important article with the accurate title Dissing Congress.4During the Rehnquist Court, the Court pursued a federalism agenda and was active in striking down congressional statutes.5 Professor Thomas Keck concluded, its view toward federal legislative power . . . the later Rehnquist Court has been the least deferential of any in the history of the U.S. Supreme striking down thirty provisions of federal law from 1995 to 2001.6 In total, the Rehnquist Court struck down federal legislation (in whole or in part) in fifty-three cases.7 This led some to label Congress as the High Court's Target.8 In noting the Rehnquist Court's hostility towards Congress, several law professors argued that the Court was increasingly obliterating a role for Congress as a separate institution.9 Indeed, several Court-watchers claimed that the Rehnquist Court was on an Anti-Congress Crusade. 10What factors contributed to this sad state of affairs for Congress? Some argued that Congress signaled that it had little institutional stake in the federalism-related matters that dominated the Second Rehnquist Court11 and noted that many of those landmark Rehnquist Court rulings were not followed talk of stripping the Court's jurisdiction, amending the Constitution, or enacting counter-legislation.12 Instead, Congress enacted fast-track provisions into legislation, seeking expedited review the courts, which in effect delegated its authority to interpret the Constitution to the Supreme Court.13 Examples of legislation with such fast-track provisions include the Communications Decency Act, the Line Item Veto Act, the McCain-Feingold campaign finance legislation, census reform legislation, and library internet filtering legislation.14Professor Neal Devins asserted that Congress seemed oblivious to its fate, and than condemn the Court and launch a counteroffensive, Congress has paid little notice to the Court's decisionmaking.15 Indeed, Devins argued that Congress may have actually spurred the Court into action by signaling its indifference to the constitutional fate of its handiwork.16On the contrary, as the data in the present study reveals, members of Congress, rather than being oblivious or indifferent, have been active in filing amicus curiae briefs before the Supreme including those very cases in which the Court has considered the constitutionality of the legislation with the fast-track provisions mentioned above.The Court's role in interpreting and even striking down legislation-and subsequent congressional action in response to such occurrences-tend to dominate the literature involving Congress-Court relations. …