University Press of Kansas, 432 pp., $39.95
Americans accept “judicial review of popular but possibly unconstitutional statutes,” George F. Will wrote some ten years ago, “because they know that if the Constitution is truly to constitute the nation, it must trump some majority preferences.”
Indeed, judicial review—the concept that the courts must ensure that even duly enacted acts of legislation comport with the Constitution—is encoded in the DNA of the United States, having been established during the very birth of the nation. But its import, its application, and its limitations have been fiercely debated for just as long by legal scholars, elected officials, and judges alike.
The centuries-long discussion of judicial review has also acquired an ideological hue, as both left and right have alternately embraced it as a wise counter-majoritarian restraint and disdained it as unbridled judicial activism, depending on who wields the levers of power. The Supreme Court is variously hailed as a beacon of democracy, valiantly defending constitutional norms, or lambasted as an undemocratic assemblage of unelected mandarins, thwarting the authentic, legitimate will of the American people. And to hear these ideological warriors tell it, the trend has only worsened over time, with the courts either vindicating important liberties or impeding national priorities at an alarming rate.
But as Keith E. Whittington makes abundantly clear in Repugnant Laws, his magisterial and meticulous study of judicial review, the Supreme Court has from its very beginning engaged unapologetically in judicial review of congressional legislation—and on the whole, it has consistently been three times as likely to uphold such measures as to strike them down. Moreover, the court has generally proven highly reluctant to invalidate statutes of significant political importance enjoying widespread popularity.
A professor of politics at Princeton, Whittington subjects to his own judicial review all of the hundreds of Supreme Court rulings involving the consideration of Federal statutes. On balance, he finds that the Court “has more often been a handmaiden to the congressional exercise of power than an obstruction. Invalidations are not rare, but invalidation is not the most likely outcome when the Court agrees to hear a case involving a constitutional challenge to a Federal law.” In fact, his tally reveals that “even during periods of relative activism, when the Court struck down laws in an unusually large number of cases, it was still more likely to uphold a law than to strike it down.”
Whittington divides his analysis into three historical periods. First, from the founding through the Civil War, judicial review began to take shape, and “the Court’s ongoing effort to silence critics of congressional power [became] a crucial part of how the Court [advanced] a common project of governance with its allies in the elected branches.”
Second, between the Civil War and World War I, the Court reviewed an explosion of Federal legislation, upholding the vast majority of bills but invalidating them more frequently than before.
And third, from World War I to today, the Court has regularly struck down congressional laws, although still at a much lower rate than popularly believed. As Whittington observes, far from pitting themselves inveterately against the other branches of government, the justices “pursue their own priorities and a distinct set of interests and values within the bounds set by the larger political context in which they operate,” a context that includes “fractious political coalitions, strategic political leaders, and numerous interests.”
The American origins of judicial review predate Marbury v. Madison, the landmark 1803 Supreme Court ruling formally arrogating to the judiciary the power to invalidate congressional statutes. Indeed, unlike in the British tradition, which generally revered parliamentary supremacy, colonial Americans located the ultimate source of authority in the people themselves and therefore contemplated the possibility that even legislation duly enacted by their legitimately elected representative might conflict with their fundamental rights.
The decorated 18th-century colonial jurist and legal scholar St. George Tucker contended that legislatures in the United States “have no rights, nor authority, nor even an existence, but from the People,” with only limited powers. Similarly, Massachusetts attorney James Otis petitioned his colony’s supreme court in the 1770s to invalidate certain parliamentary provisions, arguing that “no Acts of Parliament can establish such a writ” because “[a]n act against the constitution is void.”
During the drafting and ratification of the Constitution, Federalists and Anti-Federalists alike took judicial review for granted. James Wilson of Pennsylvania, among the first Supreme Court justices, announced that if the “legislature should pass an act, manifestly repugnant to some part of the constitution; and . . . the operation and validity of both should come regularly in question before a court,” it would be “the right and . . . the duty of the court to decide upon them.” Thus, by the late 18th century, Whittington asserts, judicial review of congressional legislation had firmly taken root among litigants, elected officials, judges, and legal commentators.
And thus, the early Supreme Court engaged eagerly in such review. But Whittington’s scrupulous analysis shows how “on those occasions when the Court was called on to answer more controversial questions, it almost invariably upheld congressional authority.” Indeed, the antebellum justices “used judicial review to work with, rather than against, Congress to construct a new national government” without “creating serious obstructions to important policies favored by active majorities when reviewing Federal laws.”
Even on those rare occasions where the Court bucked Congress, it did so in the service of national unity, such as its ignominious ruling in Dred Scott to strike down a portion of the Missouri Compromise that would have freed Scott when his masters transported him into the free Missouri Territory.
As Whittington notes, “none of the major political parties was willing to adopt an antislavery stance, and antislavery politicians were relegated to noisy factions within the major parties . . . or to third parties,” like the nascent Republicans. The justices followed suit, making “their peace with slavery as a distasteful but essential part of the compromises that kept the Union together” and “clos[ing] ranks with the bipartisan political consensus that defended the institution in the antebellum years.”
The Postbellum Era and the Gilded Age
In the wake of the war, however, the Court “became markedly more active in reviewing Federal statutes,” hearing constitutional cases five times more frequently than before and striking down an average of one Federal law every year in the final two decades of the 19th century. Amidst Reconstruction, new constitutional amendments, and a generally transformed American political, legal, and economic landscape, the Supreme Court adopted a somewhat different role, helping to “flesh out the constitutional details of what Congress could and could not do and how the national legislature could govern” across a variety of policy areas.
Whittington also demonstrates how the most famous (and most activist) case of the following postbellum era, Lochner v. New York, in which the Supreme Court struck down a Federal labor law on the ground that its interference with the right to contract violated the Fourteenth Amendment’s Due Process clause, actually represents the exception that proves the rule—“a mere activist island in a sea of judicial passivity.”
Indeed, between 1885 and 1919, the Court invalidated congressional statutes in only 32 of more than 200 cases, reflecting the tremendous surge in legislation and litigation generated by a rapidly developing nation. In instance after instance, ranging from child labor regulations to immigration to taxation, the Lochner court “worked within the fissures of the dominant political coalitions” and only rarely thwarted Congress’s key policies.
The 20th Century and Today
This relative quiescence during the Gilded and Progressive Eras yielded to a much more assertive posture in the period between 1920 and 1968, when the Supreme Court was nearly twice as likely to nullify Federal statutes on constitutional grounds—although even then its overall invalidation rate hovered around only 25 percent.
Chief Justice (and former President) William Taft presided over the early part of this period, but the trend intensified with the onset of the Great Depression and the New Deal, as President Franklin Roosevelt’s legislative barrage roiled the system and provoked an “unprecedented wave of judicial invalidations of Federal laws.”
For three long years, the Supreme Court’s “Four Horseman”—conservative justices appointed by Presidents Taft and Harding—dominated their progressive brethren, led by Justices Louis Brandeis and Benjamin Cardozo, in rejecting the core components of FDR’s National Industrial Recovery Act and Agricultural Adjustment Act and, in one case, finding for the first time in American history that Congress had impermissibly delegated its authority to the President.
But a venomous and aggressive White House campaign—including most prominently the notorious threat to “pack” the high court with additional justices, as well as a denunciation of the court’s judicial review powers—managed to dislodge two swing justices from their conservative-leaning perches. After 1937, the floodgates opened, as the Court sided with FDR and Congress on a wide variety of important issues, upholding Federal legislation in 81 decisions over the next five years. This revolution, writes Whittington, saw the Supreme Court “turn its back on the constitutional doctrine it had built up over the course of the late 19th and early 20th centuries.”
The New Deal Court was succeeded in the 1950s and ’60s by the Warren Court, which focused more on individual liberties and civil rights than economic issues. But for the most part, the justices’ thrust paralleled rather than parried that of Congress; while they frequently invalidated state statutes, especially Jim Crow laws enacted by Southern legislatures, they largely sanctioned responsive congressional measures such as the 1964 Civil Rights Act and the 1965 Voting Rights Act.
Things changed as Justices Warren Burger and then William Rehnquist ascended to the center seat, as the Court both scrutinized and nullified Federal laws somewhat more frequently than its predecessors. Rehnquist in particular focused on federalism issues, which accounted for one out of four instances of invalidation and fueled his court’s perception as an especially activist body. But apart from federalism cases, the Court’s liberal wing, led by Justice Ruth Bader Ginsburg, found itself in the majority for striking down congressional legislation more often than archconservative Justices Antonin Scalia or Clarence Thomas. Still, in Whittington’s estimation, the Rehnquist Court was “more inclined to set up ‘speed bumps’ than ‘roadblocks’ to congressional ambitions.”
The Roberts Court slowed this ascent, striking down Federal legislation at a pace somewhat higher than that of the Warren Court but lower than that of the Burger or Rehnquist Courts. Judicial review under the current justices has been “a story not of conservative dominance but of shifting coalitions that drew from both ends of the ideological spectrum,” as disputes over Obamacare, same-sex marriage, and corporate political expenditures demonstrated. Divisions on the Court reflected, and continue to reflect, persistent political polarization in the other two branches of government.
And this, indeed, is where Whittington’s analysis begins and concludes: with the assertion that the judiciary occupies a position squarely within the framework of American politics.
Contrary to the “counter-majoritarian difficulty,” the theory propounded by celebrated legal scholar Alexander Bickel in his landmark 1962 book The Least Dangerous Branch, the Court does not exist simply (or even mainly) to strike down popular legislation and thereby resist the tyranny of the majority.
And contrary to the “court-as-handmaiden” hypothesis articulated in constitutional expert Robert Dahl’s groundbreaking 1957 article “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” members of the judiciary are not partisans in thrall to the officials in the other branches who appointed them.
In fact, Whittington contends, Federal judges “are buffeted by the same maelstroms of opinion and emotion that affect those around them” and “are not disinterested observers of the political world” but rather “power actors within it.” Far from nullifying important, popular legislation, or serving as lapdogs of their political patrons, the Supreme Court has struck down statutes enacted by their would-be partisan allies at the same rate as measures passed by their opponents.
As Whittington puts it, Supreme Court justices “are best understood as political partners. They are not minions who simply do the bidding of party leaders. They are allies of coalition leaders, not their agents.” Sure enough, in the final reckoning, the High Court has in its entire history invalidated only five percent of “landmark legislation,” as defined by the Congressional Research Service.
Ultimately, ideological activists lament how “the Court has been captured by their opponents, and close observers of the Court have continually found themselves writing of the ‘counter-revolution that wasn’t,’ of ‘a Court divided,’ and of a center that still holds.” These characterizations have sharpened since the 1980s, and the ideological rancor seems unlikely to dissipate anytime soon.
But as Repugnant Laws capably demonstrates, the Supreme Court has always engaged thoroughly in reviewing congressional legislation, while invalidating less than one quarter of all such measures it has considered, and even fewer of crucial importance with strong popular support. Readers seeking a similar analysis of the Court’s scrutiny of state laws will evidently have to await a sequel. But for now, Repugnant Laws stands as a helpful corrective to the partisan narratives of both sides—and is sure to set the standard for books of its kind for decades to come.