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.
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
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