Vol. 30 No. 8 (September 2020) pp. 124 - 127REPUGNANT LAWS: JUDICIAL REVIEW OF ACTS OF CONGRESS FROM THE FOUNDING TO THE PRESENT, by Keith E. Whittington. Lawrence, KS: University Press of Kansas, 2019. 432pp. Cloth $39.95. ISBN: 978-0-7006-2779-0.
Reviewed by Andrew J. O’Geen, Department of Political Science, Davidson College. Email: anogeen@davidson.edu.
It will come as no surprise to those who are already familiar with his extensive body of work, but Keith Whittington has written an excellent book. In it, he canvases the entire corpus of U.S. Supreme Court opinions in which the Court reviews the constitutionality of a federal statute, some 1,308 cases through October term 2017. Whittington’s ultimate goal is a more nuanced and more complete understanding of the Court’s use of the powerful tool of judicial review. First, the book is an impressive effort in data collection and description. Whittington does well to use these data to show how different trends in the Court’s use of judicial review have evolved and changed over time and how these trends might relate to other important factors in American politics. Covering so much historical ground, this endeavor on its own would make for an interesting book. However, Whittington does more than just describe a central aspect of the Court’s work. He also seeks to situate this description squarely within the extensive literature that has grown largely out of Dahl’s (1957) seminal article on the Court as a national policymaker. The result is an updated and slightly more nuanced take on the Court’s role as an institutional actor that operates “within democratic politics, not simply as a constitutional guardian standing outside of democratic politics” (p. 314). His success in both efforts is a testament to the quality of both the writing and the scholarship in REPUGNANT LAWS.
The overarching structure of the book is straightforward and easy to follow. Whittington begins with a chapter outlining the questions and perspective that shape the book. This chapter does an excellent job of orienting the reader toward the larger task ahead and Whittington does well to place the book into conversation with foundational work on the Court’s power of judicial review including that of Dahl and Bickel (1962). Whittington then divides the Court’s history into three primary eras: the Founding through the Civil War, the Civil War through World War I, and World War I through the present. The individual chapters of the book dive deeper into specific periods within each of these eras. This periodization effectively contextualizes and complicates the Court’s approach to evaluating federal statutes and provides a useful structure through which to understand the Court’s role in shaping federal law and policy. Finally, Whittington does the impatient reader a tremendous favor by ending Chapter 1 with a list of seven themes and conclusions that are more fully developed in the ensuing chapters.
In Chapter 2, Whittington offers a historical overview of judicial review before the Founding. He first shows that colonial Americans – at least elites – understood that constitutions and the law could (and should) place limits on the power and authority of governments. He goes on to show that state courts were practicing an early form of judicial review, mostly centered around challenges to judicial power. The primary point is that the foundations for judicial review – as it would come to [*125] be practiced in the United States – were in place before the country was founded and were rooted in the basic functioning and understanding of the English and early colonial legal systems. Further, the supremacy of the federal constitution – enforced by federal judges – over state courts, was a fundamental concern of many of the founders.
Chapter 3 represents the start of the main body of the book and begins with Whittington challenging what he refers to as the "standard story" of judicial review before the Civil War. As he puts it, "MARBURY was not the big bang, and DRED SCOTT was not a bolt from the blue” (p. 61). To be sure, both MARBURY and DRED SCOTT were critical moments in the history of the Court’s practice of judicial review. But, through a more comprehensive look at all the cases evaluating the constitutionality of federal statutes, Whittington shows how “the process of judicial review was built up through the resolution of more mundane cases in which the political stakes were relatively low” (p. 117), with the Court focused on both the process of building and reinforcing the power of the federal government and building and reinforcing the power of the judicial branch. Herein also, we see an early example of what becomes a consistent theme throughout the book. The beliefs and prejudices of any particular historical moment – particularly, in this era, around the issue of slavery – are reflected in the justices of the Court and, through them, in the decisions, doctrines, and policies that emanate from that Court in the form of opinions and case resolutions.
Chapter 4 touches on the practice of judicial review during the Civil War and Reconstruction. Here, Whittington presents convincing descriptive data that connects the Court’s increased review activity with significant increases in legislative productivity from Congress. These data also make clear that the Court’s increased review of legislation during this era was focused on recent output from Congress, putting the Court and Congress in direct conversation as policy-making bodies. This is a dynamic that appears to vary over time, with the Court sometimes focused on reviewing recent acts of Congress and sometimes focused on older legislation. The onset of the Civil War saw the Court back away from significant conflict with Congress and also led to a period of "routine" judicial review where the Court acts as less of a check on government overreach and more of a tool for “fine-tuning the constitutional order” (p.145).
Chapter 5 traces the Court’s review activity up through the LOCHNER era. This was an era in which (Republican) party control of nominations and confirmations was a significant influence on the Court’s output. This was evident not only through the Court’s decision in LOCHNER V. NEW YORK (1905), but through the first part of the New Deal era. As Whittington notes, "[t]he LOCHNER Court worked hand in hand with the conservative political leaders in both parties to realize a common constitutional vision of limited government within a decentralized federal system” (149). So, while the Court was willing to read its own interpretation of the Constitution into vague or ambiguous statutory – and constitutional – language, this was largely done in service of goals that were shared by the governing majority. Whittington does well to describe and contextualize the few instances of the Court striking federal statutes during this era, but the ultimate story of the Court at this time was one of overlap with – and acquiescence to – majoritarian preferences. [*126]
Chapter 6 covers the two constitutional revolutions of the 20th century. The first, during the 1930s, represented a structural break from the understanding of the Constitution espoused by the Republican-controlled Courts of the post- Civil War era and made way for the significantly strengthened and expanded federal government that came with the New Deal. The second, during the 1950s and 60s, was the significant expansion of rights and liberties during the Warren Court. The result of the first revolution was “expanded congressional power and greater judicial deference to that power” (210). However, Whittington notes, the early Roosevelt Court was slightly less willing to extend this deference to issues involving civil rights and liberties. This increased emphasis on the protection of civil liberties from government intrusion, most famously articulated in footnote no. 4 in U.S. V. CAROLENE PRODUCTS (1938), was the precursor to the Court’s considerable expansion of civil liberties during the Warren era. This era in the Court’s history also marked a reduction in judicial review of federal statutes and increased review of state and local laws.
The final era, addressed in Chapter 7, addresses the years following the Warren Court. These years marked a shift in the collective ideology of the Court toward the conservative, as a succession of Republican presidents made the majority of Court appointments. However, the hoped-for conservative counter-revolution never materialized, as an increasingly fractured Court narrowed but did not replace many of the Roosevelt and Warren eras’ changes. One important trend to emerge during this time is a dramatic reduction in the Court’s use of judicial review to strike down state and local statutes, and a corresponding increase in the Court's willingness to review (and strike down) federal laws. This trend, happening in conjunction with the increased prevalence of divided government, and the increasing polarization in American politics – including on the Court itself – meant that the Court’s focus tended to be a bit sporadic. Some ideological factions were able to concentrate energies on specific issues (e.g. federalism for the conservatives), but the Court was increasingly fractured on important issues.
Any project that covers this much ground will necessarily have to make some concessions to space and attention. So, some readers may quibble with Whittington’s choices of cases and topics to emphasize (or deemphasize). This should not detract from the larger merits of the book. Whittington's impressive data collection and insightful analysis give readers as full a picture as exists of the Court's use of one of its most important tools.
CASES:
U.S. V. CAROLENE PRODUCTS, 304 U.S. 144 (1938).
DRED SCOTT V. SANDFORD, 60 U.S. 393 (1857).
LOCHNER V. NEW YORK, 198 U.S. 45 (1905).
MARBURY V. MADISON, 5 U.S. (1 Cranch) 137 (1803). [*127]
REFERENCES:
Bickel, Alexander M. 1962. THE LEAST DANGEROUS BRANCH. Indianapolis: Bobbs-Merrill Company, Inc.
Dahl, Robert A. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy Maker.” JOURNAL OF PUBLIC LAW 60: 279-295.
© Copyright 2020 by the author, Andrew J. O’Geen.
REPUGNANT LAWS: JUDICIAL REVIEW OF ACTS OF CONGRESS FROM THE FOUNDING TO THE PRESENT
