Repugnant Laws

Judicial Review of Acts of Congress from the Founding to the Present

Keith E. Whittington

When the Supreme Court strikes down favored legislation, politicians cry judicial activism. When the law is one politicians oppose, the court is heroically righting a wrong. In our polarized moment 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.” But is this really the case? Keith E. Whittington asks in Repugnant Laws, a first-of-its-kind history of judicial review.

A thorough examination of the record of judicial review requires first a comprehensive inventory of relevant cases. To this end, Whittington revises the extant catalog of cases in which the court has struck down a federal statute and adds to this, for the first time, a complete catalog of cases upholding laws of Congress against constitutional challenges. With reference to this inventory, Whittington is then able to offer a reassessment of the prevalence of judicial review, an account of how the power of judicial review has evolved over time, and a persuasive challenge to the idea of an antidemocratic, heroic court. In this analysis, it becomes apparent that that the court is political and often partisan, operating as a political ally to dominant political coalitions; vulnerable and largely unable to sustain consistent opposition to the policy priorities of empowered political majorities; and quasi-independent, actively exercising the power of judicial review to pursue the justices’ own priorities within bounds of what is politically tolerable.

“As contemporary judicial selection politics amplify the urgency of discussions regarding judicial activism, the Court’s legitimacy, and the relationship between party and judicial office, Whittington’s study reminds readers that the Supreme Court has long acted as a nation-builder and an arm of the national state, operating within partisan politics. In stressing ‘the conditional quality of judicial independence,’ Whittington offers the counsel of perspective on our current era of partisan polarization and strained inter-branch relations.”

—Nancy Maveety, author of Queen’s Court: Judicial Power in the Rehnquist Era

“Keith Whittington’s invaluable and comprehensive survey of Supreme Court decisions striking down&#mdash;and upholding—federal statutes carefully maps the complex relations between the Court and the political coalitions that produce, support, or sometimes abandon the laws the Court reviews. Bringing insights from American political development to bear, Whittington has supplanted Robert Dahl’s classic work while preserving its core. Everyone interested in American political development and the Supreme Court must now take this work into account.”

—Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

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The court, Repugnant Laws suggests, is a political institution operating in a political environment to advance controversial principles, often with the aid of political leaders who sometimes encourage and generally tolerate the judicial nullification of federal laws because it serves their own interests to do so. In the midst of heated battles over partisan and activist Supreme Court justices, Keith Whittington’s work reminds us that, for better or for worse, the court reflects the politics of its time.

About the Author

Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University. His many books include Political Foundations of Judicial Supremacy, Speak Freely, and, also from Kansas, Constitutional Interpretation.

Additional Titles in the Constitutional Thinking Series