by Keith E. Whittington. Princeton, NJ: Princeton University Press, 2007. 320pp. Cloth. $35.00/£19.95. ISBN: 9780691096407.Reviewed by Kenneth Ward, Department of Political Science, Texas State University. Email: KW12 [at] txstate.edu.
pp.644-648
In POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY, Keith Whittington traces “the process by which judicial supremacy has been constructed over the course of American history” and, in so doing, makes an important contribution to debates in constitutional theory.
Many constitutional theorists frame the problem of judicial supremacy as a legal question that is answered through a correct interpretation of the Constitution. They ask whether judicial interpretations of constitutional law have authority that extends beyond the immediate cases that judges decide; do political actors have an obligation to defer to the Court’s understanding of the Constitution when exercising their own independent authority? Whittington, by contrast, identifies the conditions that have led political actors to defer to judicial authority and explains why, to a surprising extent, they have constructed a regime that is characterized by judicial supremacy.
The book has the depth and breadth of scholarship that we have come to expect from Whittington. He draws on a rich study of history to support a thesis that builds from various literatures in political science generally and the study of courts in particular. Whittington writes with clarity, precision and grace and should be read, if only as a model of what scholarly work should be.
Whittington applies Stephen Skowronek’s model of presidential power to distinguish three contexts that influence the relationship among judges and other political actors. Certain presidents find themselves opposed to weak or dying regimes and thus in the position to mount effective challenges to those regimes. These “reconstructive” presidents come into conflict with all who defend the status quo, and in opposing the basic commitments of the old regime, they often challenge a judiciary that enforces those commitments.
These challenges are uncommon; they are associated with presidents who have sought or achieved significant changes in how we understand our fundamental political commitments, namely Jefferson, Jackson, Lincoln, Roosevelt and Reagan. These are also the presidents we associate with departmentalism, the primary alternative to judicial supremacy. Departmentalism is the view that each institution of government has equal authority to interpret the Constitution such that presidents’ authority to challenge judicial interpretations of constitutional law follows from the office they hold. Whittington, by contrast, attributes both [*645] the authority of these presidents and the consequent reduction of judicial authority to relatively unusual historical circumstances of the particular office holders.
But most presidencies are not reconstructive. Of these, Whittington distinguishes those that are aligned with the dominant regime and those that are opposed. In these contexts, constitutional politics does not manifest the creativity seen when the fundamental commitments that define the regime are at issue. Presidents find themselves constrained by the constitutional understandings of the dominant regime and must compete with other political actors, including the judiciary, to specify the meaning of those understandings.
Whittington contends that in these contexts political actors have incentives that tend toward an expansion of judicial authority. He illustrates how a judiciary aligned with the dominant regime gains authority as political actors create new judgeships and expand jurisdiction to allow it greater opportunity to enforce and extend regime commitments, most notably against regional or local interests opposed to the regime. Moreover, affiliated judges can sometimes extend regime commitments to areas where their elected allies have disincentive to act or where their coalition is fragmented, such as when the judiciary took the lead in defining the New Deal coalitions’ commitment to civil rights.
Whittington illustrates how judges also gain authority when confronted by presidents opposed to the dominant regime. This is more surprising, as one would expect these presidents to be weaker versions of reconstructive presidents, opposed to the regime but with less ability to challenge it. It is here where Whittington’s analysis is at its best. First, he suggests that these “preemptive” presidents are only nominally oppositional. In contrast to ideological opponents who challenge basic constitutional commitments of the regime, these presidents, such as Cleveland, Eisenhower, Nixon and Clinton, tend to win election by walking an electoral tight rope. To gain office, they must attract at least some support from the dominant coalition and, to do so, must affirm at least some of the regime’s commitments. Thus, they must distance themselves from their natural allies in order to embrace wary friends.
As a consequence, these presidents find themselves in a perilous strategic position, having both divided the dominant coalition and alienated some supporters. Therefore, they are unlikely to make an effective attack against the judiciary and have to worry about more potent rivals elsewhere. More significantly, preemptive presidents have various incentives to strengthen the judiciary in the hope that it might assist them in conflicts with rivals. President Nixon, for example, raised constitutional issues in battles with Congress and appealed to the Court to resolve the conflict. And, after forging legislative compromises with rivals in Congress, Presidents Cleveland and Clinton supported the Court as it struck down compromises that Congress had forced upon them. [*646]
This short summary does not do justice to the sophistication of Whittington’s thesis or to the wealth of historical examples he uses in its defense. His book is a significant contribution to a burgeoning scholarship that considers judicial authority in relation to the broader political regime to which judges contribute.
And while these scholars have done well in moving debates in constitutional theory away from the legal question of whether or why the Constitution gives judges the power of judicial review, Whittington’s historical analysis extends their project. It helps us to see greater nuance in judges’ political interactions with other institutional actors and to identify important normative implications that follow from these interactions.
Legal approaches in constitutional theory have tended to focus on the question of why judges should be able to exercise judicial review in a democratic government. They attempt to explain why judicial review follows from a correct interpretation of the Constitution and how judges must interpret the Constitution so as to ensure that judges enforce a preexisting law rather than override the political judgment of elected officials.
In time, many scholars have recognized the depth of our disagreements about the Constitution and thus the difficulty, if not impossibility, of defending a theory of constitutional interpretation in which judges enforce the law itself rather than a political preference about how we should interpret the law. These scholars recognize that the meaning of the Constitution is contested: judges compete with other political actors to determine its meaning. And with this recognition, debates in constitutional theory have given less emphasis to judicial review, judges’ authority to apply the Constitution, and have paid more attention to judicial supremacy, the relationship between judges’ interpretations of constitutional law and those of rival political actors.
Whittington, for example, criticizes legal approaches because they assume that the Constitution has a set meaning and ignore the political significance of our disagreements about the Constitution. Judges, in his view, are not able to enforce their interpretations of the Constitution when facing considerable political opposition, and he believes that this is a good thing because the Constitution would lose vitality if the People no longer viewed its commitments as their own.
But Whittington goes beyond those political approaches that view judges’ interactions with political actors as sufficient to establish the democratic legitimacy of judicial authority or that identify problems that follow from a judiciary too closely aligned with the dominant regime. Although he associates judicial authority with the historical circumstances in which judges exercise power, his historical study contradicts the simple equation that leads one to believe that judges can exercise authority effectively only when judicial decisions are in line with the dominant regime. While it is true that political actors often bolster judicial [*647] authority in order to give judges greater warrant to advance the ends of those actors, Whittington recognizes that judges use those warrants to advance their own ends as well.
Indeed, Whittington’s analysis suggests two reasons that American constitutionalism has tended toward judicial supremacy. First, judges do not often face the challenge of a reconstructive presidency and, more typically, find themselves in circumstances in which political actors have reason to bolster their authority. Second, during affiliated and preemptive presidencies, political actors contest the meaning of a regime’s constitutional commitments even when there is consensus about what those commitments are in the abstract. As a consequence, judges will have significant influence over what shape the regime takes, because they can sustain their authority to resolve those disagreements by drawing on the warrants various political actors have provided. Moreover, Whittington notes that in the last century political regimes have been characterized by greater ideological diversity, making conflicts about constitutional meaning more likely and thus creating additional opportunities for the effective exercise of judicial authority.
Whittington is at his best describing the conditions that explain the authority judges exercise today and, for the most part, that is what his book does. He is less convincing when making his own qualitative assessments. He seems to give a qualified endorsement to the practices that have come to characterize American constitutionalism. Whittington believes that the weakness of the judiciary during reconstructive periods creates an opportunity for political actors to redefine our fundamental values while reaffirming our commitment to the Constitution, and during other periods, judges’ interactions with political actors allows authority to shift among different institutions such that the government as a whole can pursue policies that might be unattainable in governments in which responsibility for constitutional interpretation rested solely with an easily identifiable institution.
But it sometimes seems that Whittington’s analysis brings him too close to the practices he describes and leaves him without critical distance necessary for qualitative assessment. For example, Whittington rejects legal arguments defending judicial supremacy. He contends that in some contexts political actors will continue to challenge the judiciary, even if it were true that judges perform an important legal function that should lead these actors to defer. It would seem, however, that if there were reasons to favor judicial supremacy, this would be reason to consider institutional changes that would make it more likely that political actors would defer to the judiciary. We might favor a constitutional amendment that gave the Judiciary authority to resolve our disagreements about the Constitution, for example.
On the other hand, we might agree with Whittington about the virtues of the current system. But to do so, we would have to agree on some standards for [*648] assessing institutional arrangements. Whittington brackets this problem, notwithstanding the qualitative claims he makes.
Given the careful analysis that characterizes the book as a whole, I believe that Whittington is identifying normative considerations that follow from particular institutional arrangements rather than defending the arrangements themselves, at least in any strong sense. Indeed, it is important to recognize that his normative claims are assertions and not arguments, in order to see how the book suggests a direction that constitutional theory might take.
Whittington makes an important distinction between constitutional law and constitutional theory. We will not make correct judgments about the form constitutional government should take if we consider the Constitution as abstract law disconnected from the institutional practices that give it vitality. But to assess competing institutional arrangements adequately, we must sustain a normative discourse that is removed from those practices.
Constitutional theory, then, faces a threefold challenge. We must do a better job keeping our discussion of the best institutional arrangements separate from our discussion about how to interpret the Constitution. Our discussion of the best institutional arrangements should be informed by a study of the consequences that have followed from actual political practices. And we need to clarify the normative standards that we use to assess competing institutional arrangements. Whittington makes an important contribution to our understanding of the development of American political institutions and raises interesting questions about the shape those institutions might take. In so doing, he addresses each of these challenges.
© Copyright 2007 by the author, Kenneth Ward.
