Whittington on Judicial Review by the US Supreme Court

Keith E. Whittington, Princeton University, Department of Political Science, has posted Sober Second Thoughts: Evaluating the History of Horizontal Judicial Review by the U.S. Supreme Court, which is forthcoming in Constitutional Studies:

Normative theorizing about judicial review often proceeds with minimal attention to the overall record of how the U.S. Supreme Court has actually exercised the power of judicial review. This article assesses how well the historical record of the Court’s invalidation of federal policies can be justified using only a minimalist theory of judicial review. Although some of the Court’s cases can be justified in this way, most of the Court’s work would require a more substantively thick and necessarily controversial theory in order to justify it.