Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present-Keith Whittington

Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present. By Keith Whittington (Lawrence, University Press of Kansas, 2019) 410 pp. $39.95.ISBN-13: 9780700627790

Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University.

A hun­dred years ago there were se­ri­ous and live­ly de­bates over wheth­er courts should even have the pow­er to strike down acts of elected leg­is­la­tures. Those de­bates are large­ly in the past. Courts now rou­tine­ly, al­most cas­u­al­ly, in­val­i­date leg­is­la­tion. But the re­ac­tion ju­di­cial re­view now pro­vokes is ra­ther dif­fer­ent. Few ar­gue that judges should aban­don the pow­er to re­view and in­val­i­date the de­lib­er­ate acts of oth­er gov­ern­ment of­fi­cials. In­stead, the con­tem­po­rary ar­gu­ment is large­ly over which acts should be struck down. Courts should be re­strained from do­ing the wrong thing, but they should be ac­tive in do­ing the right thing. Of course, there is lit­tle agree­ment on what counts as the wrong thing or on how courts ought to ex­er­cise the pow­er they wield.

Contents

Foreword

Preface

1. The Politics of Judicial Review

2. The Road to Judicial Review

3. Exercising Judicial Review before Civil War

4. Review of Congress during the Civil War and Reconstruction

5. Congress and the Lochner Court

6. The Constitutional Revolution

7. Congress and the Conservative Court

Conclusion

Extract from foreword

The first thing read­ers of Keith Whit­ting­ton’s re­mark­a­ble book should no­tice is its sub­ti­tle: Ju­di­cial Re­view of Acts of Con­gress from the Found­ing to the Pre­sent. What he has done is to care­ful­ly read and eval­u­ate 1,308 cases 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, all of which in­volve ju­di­cial re­view of acts of Con­gress. Whit­ting­ton does not con­sid­er any of the myr­i­ad cases—in­clud­ing the most fa­mous, Brown v. Board of Educa­tion—in­val­i­dat­ing state leg­is­la­tion. Ol­i­ver Wen­dell Holmes fa­mous­ly opined, “I do not think that [the] United States would come to an end if we lost our pow­er to de­clare an Act of Con­gress void. I do think the Un­ion would be im­per­iled if we could not make that dec­la­ra­tion as to the laws of the sev­er­al States.” In some ways, Whit­ting­ton’s book is a won­der­ful ex­am­i­na­tion of the va­lid­i­ty of Holmes’s as­ser­tion with re­gard to acts of Con­gress.

In some ways, Whit­ting­ton couches his book as a test of Ro­bert Dahl’s fa­mous prop­o­si­tions (1) that the Su­preme Court must be un­der­stood as a ba­si­cal­ly po­lit­i­cal in­sti­tu­tion and (2) that one must there­fore strive to un­der­stand the spe­cial cir­cum­stances un­der which the Court will at­tempt to of­fer an em­pir­i­cal anal­y­sis of the cir­cum­stances un­der which the Court would in­val­i­date acts of Con­gress.

Even if Whit­ting­ton dem­on­strates that the Court is more of an ac­tive po­lit­i­cal play­er than Dahl sug­gested, he none­the­less re­in­forces the po­si­tion tak­en by Ger­ald Ro­sen­berg in his clas­sic book The Hol­low Hope, which main­tains that po­lit­i­cal ac­tiv­ists should not ex­pect the Court to de­vi­ate very much from the gen­er­al drift of Amer­i­can pub­lic opin­ion or, per­haps more to the point, the views of po­lit­i­cal elites who dom­i­nate the Amer­i­can po­lit­i­cal sys­tem by win­ning elec­tions and tak­ing of­fice. Ro­sen­berg was writ­ing specifically about Pro­gres­sive forces who hoped the Court would be an all-im­por­tant ally and there­fore make it far less im­por­tant to ac­tu­al­ly win po­lit­i­cal victories.

In ad­di­tion to the grand theme of how the Court has nav­i­gat­ed po­ten­tial con­flicts with Con­gress over the past 225 years, Whit­ting­ton of­fers a host of val­u­a­ble in­sights along the way. First, there is the hoary sto­ry that Marbury v. Mad­i­son “cre­at­ed” ju­di­cial re­view and then, af­ter that 1803 de­ci­sion, the Court did not en­gage in an­oth­er such act un­til dis­ci­plin­ing an out-of-con­trol Fed­eralist Court that was de­ter­mined not to rec­og­nize the so-called Rev­o­lu­tion of 1800 that had dis­placed the pri­or Fed­eralist he­gem­o­ny. It was eas­i­er to de­clare that the Court had no pow­er to or­der the de­liv­ery of the com­mis­sion be­cause the stat­ute al­leg­ed­ly giv­ing it such pow­er was un­con­sti­tu­tion­al. And a week lat­er, as Whit­ting­ton notes, the Court al­most la­con­i­cal­ly up­held the abil­i­ty of the Jef­fer­so­ni­an Con­gress to purge the fed­er­al ju­di­ci­ary of a num­ber of Fed­eralist judges sim­ply by re­peal­ing the act, passed in the wan­ing days of the Ad­ams ad­min­is­tra­tion, that had cre­at­ed an in­ter­me­di­ate tier of fed­er­al cir­cuit courts, whose mem­bers had been quick­ly ap­point­ed and con­firmed by the lame-duck Fed­eralist Con­gress.

Har­vard po­lit­i­cal sci­en­tist Ken­neth Schepsle fa­mous­ly sug­gested in 1992 that Con­gress is a “they,” not an “it.” What this means is that po­lit­i­cal co­a­li­tions usu­al­ly con­sist of mem­bers with mul­ti­ple view­points who might vote to­geth­er on a giv­en piece of leg­is­la­tion; for some mem­bers of the co­a­li­tion, how­ev­er, the af­firm­a­tive vote is more a mat­ter of be­ing a good team play­er, or be­ing the re­cip­i­ent of a log­roll­ing ben­e­fit with re­gard to leg­is­la­tion they re­al­ly care about, than a state­ment of deep prin­ci­ple. This, in ef­fect, gives the Court some sig­nif­i­cant lee­way to strike down even relatively re­cent leg­is­la­tion passed by the same co­a­li­tion that placed the jus­tices on the bench, pro­vid­ed the high­lights—the in­come tax cases, E. C. Knight, the child la­bor case—but this was only a small part of the Court’s work and leaves a mis­lead­ing im­pres­sion of how ju­di­cial re­view was ex­er­cised.” –Sanford Levinson