Wednesday, May 29, 2019

Whittington on "Judicial Review Acts of Congress from the Founding to the Present"

The University of Press of Kansas has published Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (May 2019), by political scientist Keith E. Whittington (Princeton University). A description from the Press:
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. 
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.
A sample of advance praise:
Keith Whittington’s invaluable and comprehensive survey of Supreme Court decisions striking down--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
More information is available here.

-- Karen Tani

In conjunction with the publication of Repugnant Laws, Professor Whittington has released a "Judicial Review of Congress" database that, in his words, “aspires to catalog every case in which the U.S. Supreme Court substantively reviewed the constitutionality of an application of a provision of a federal statute from the founding through the retirement of Justice Anthony Kennedy. As well as identifying the cases, the dataset includes a range of information about each case.”  Professor Whittington hopes “to add both cases and variables over time, as well as provide a more reader-friendly list of the cases.”  He continues:
For various reasons, the dataset includes a substantially larger number of cases in which the Court refused to apply a statutory provision on the grounds of constitutional defect than the list of invalidated laws maintained by the Congressional Research Service. It also includes a new list of cases in which the Court upheld an act of Congress over a constitutional challenge. There are interesting shades of gray on how to think about these cases, but the dataset, the description of variables, and an explanation of how the cases were identified can all be found [here].
--Dan Ernst