Chief Justice Roberts writes an annual report on the state of the Supreme Court, and reminded readers just a few months ago that “The Judiciary is, of course, an independent and self-governing branch of government, but it has nevertheless sought input from all interested quarters.” Is that an accurate reflection of the way the Court functions? In this very polarized era of partisan fervor, the Supreme Court’s routine work of judicial review is increasingly viewed through a political lens, decried by one side or the other as judicial overreach, or “legislating from the bench.” Is the court a political institution, just as subject to today’s political winds as the other branches of our government? Guardian or player? This critical question is at the heart of Keith Whittington’s research and his new book, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (University of Kansas Press 2019).
At the start of this research endeavor a number of years ago, Whittington realized that there was no choice other than to read exhaustively and evaluate all 1,308 cases that involve judicial review, decided over the entire history of the US Supreme Court from its beginning to the end of the 2017 term in the spring of 2018. Writing in the book’s foreword, Sanford Levinson, Coeditor of Constitutional Thinking, describes this research as “almost certainly unprecedented in its scope and ambition.” Whittington explains, “I didn’t expect to have to start ‘from scratch,’ but realized I’d be taking a chance on missing half the story – I had to think of this as a large-N, qualitative study of the history of judicial review.”
He undertook a comprehensive survey of all Supreme Court decisions, both those that struck down and upheld federal statutes. This created a map of the prevalence of judicial review and how it has changed over time, from before the Civil War to the Roberts court. The catalog of cases reported on in the book is a first of its kind, uncovering long-forgotten cases in which the Court enforced constitutional limits on Congress and assembling hundreds of cases in which the Court upheld innovative uses of congressional power.
Whittington’s meticulous analysis is the foundation of his conclusions about whether the Supreme Court’s actual behavior as an institution aligns with the story we learn, and tell ourselves, about a body removed from politics and insulated from political winds by no less a barrier than the constitution. Whittington doubts the veracity of this story, “My work confirms that the court is a political institution operating in a political environment, often surrounded by controversy, and exercises political power to modify federal policy.” His analysis suggests that the justices are individuals subject to political influences and processes that then influence decision-making. Supreme Court decisions are a result of a vote by nine individuals, who each became decision-makers through political appointment processes after having been socialized, politically, just as their colleagues and all people are. And they are subject to the same emotional turmoil and political opinion storms as are we all. But, unlike most of us, they are powerful actors in the political world. Repugnant Laws concludes,
“When the Court intervenes to vindicate those principles against an errant national legislature, it is often doing the political work that political leaders want it to do. It is acting as a player within democratic politics, not simply as a constitutional guardian standing outside of democratic politics.”
Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University and a faculty associate of the Center for the Study of Democratic Politics (CSDP). His many books include Political Foundations of Judicial Supremacy, Speak Freely, and Constitutional Interpretation.