Balkinization: A Political History of Judicial Review

A Political History of Judicial Review

Guest Blogger

Keith E. Whittington

My thanks to Jack for his suggestion of a guest post on my new book Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (University Press of Kansas, 2019). A post seems particularly appropriate since the book draws on the work of many of the Balkinization contributors.

Repugnant Laws develops a political history of how the U.S. Supreme Court has exercised the power of judicial review over federal statutes from its founding through the retirement of Associate Justice Anthony Kennedy. The focus is on how the Court has understood the scope of the congressional legislative power and enforced constitutional boundaries against the national legislature over time. It is less a history of constitutional law than an examination of how the Court’s work has fit into the ideology and political needs of national partisan coalitions and whose oxen have been gored by how the Court has wielded the power to strike down laws. One motivation for the project is a suggestion some years ago by Mark Tushnet that “judicial review basically amounts to noise around zero.” In line with others (including some of my earlier work), he suggested that the courts were “regularly . . . more or less in line with what the dominant national political coalition wants.” Repugnant Laws details the extent to which that has been true.

This view of the Court as a political coalition partner reflects a research tradition extending back to Robert Dahl, the great political scientist of the mid-twentieth century. Dahl argued that politically appointed justices would mostly be passive observers of what Congress does and could hardly be expected to be regular antagonists of Congress or defenders of minority interests against elected majorities. Writing in the 1950s, Dahl examined the history of cases in which the Court had struck down an act of Congress to that point and concluded that the Court rarely opposed a live congressional majority on a policy of consequence. Dahl was on to something important, but the story is more complicated than he suggested.

Repugnant Laws examines just how much of a coalition partner the Court has been across its history. In the process, it revises our understanding of parts of American constitutional history and of how activist the Supreme Court has been in obstructing the elected majority over time. The Court’s independence has been effectively bounded by the political needs of elected leaders, but elected leaders often welcome judicial intervention in policy disputes. I have previously dissected the logic of presidential support for judicial review, and this book similarly emphasizes that political leaders often benefit from and welcome judicial activism. Elected politicians do not expect or want the Court to simply rubber stamp their legislation, but the Court cannot get too much in the way. And it has tended to avoid doing so. The Court has been more apt to expand congressional power than to rein it in.

We are once again hearing calls for an apolitical Court. This is a recurrent fantasy of American political life. The Court has never been apolitical, and it is not about to become so. Our politics are partly organized around constitutional disputes, and the Court is both a product of and a participant in that politics. It is hard to look at the history of how the Court has assessed the constitutionality of congressional acts and identify a time in which the Court was outside of politics. We expect judges to stay out of the low politics of political campaigns, legislative logrolling, and partisan maneuvering for temporary advantage. We cannot reasonably expect them to stand aloof from the high politics of constitutional debate.

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. You can reach him by e-mail at kewhitt at princeton.edu

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