- Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present by Keith Whittington
To students and practitioners of the American policy process, judicial review is a fascinating instrumentality. In its use, we imagine the concentrated power of a tiny, insular cadre of specialists to declare what may and what must happen in public policy. To anyone with a policy agenda, this power is both beguiling and fearsome. However, this depiction is also a significant exaggeration of how federal judicial review has developed and is actually practiced today—one of the many important points that Whittington makes in Repugnant Laws.
Though the broad outlines of many of the issues raised in this book will be familiar to specialists in American public law, the evidence that [End Page 162] Whittington marshals sets a new standard for comprehensiveness. The backbone of the book is an original data set of every U.S. Supreme Court opinion reviewing an act of Congress on constitutional grounds (the book does not consider judicial review of actions in the executive branch or the states). Significantly, unlike previously constructed data sets, Whittington’s includes cases that uphold federal statutes on constitutional grounds, not just those invalidating legislation. His research yields 1,308 cases from 1793 (well before Marbury v. Madison) to 2017. Whittington codes these cases on a variety of dimensions: whether the statute in question was “landmark” or not; elapsed time between enactment and Court decision; partisanship of the enacting Congress; or whether the statute’s reviewed provisions deal with questions of procedure, economic regulation, or individual rights. Through chronologically sequenced chapters organized around major eras in the Court, Whittington presents various natural parsings of the quantitative data, and a narrative summary of the political context and holding for a great many of the cases. The result is a synoptic and highly textured analysis of the nature, scope, and implications of judicial review over time.
Although the bulk of the book focuses on historical context and textual discussion of individual cases, the data allow for a fresh assessment of several theories (both positive and normative) of judicial action and judicial review. Whittington offers his assessments in the concluding remarks to most chapters, and more fully in the book’s concluding chapter. For instance, his decision to incorporate both positive and negative outcomes allows a new picture of the Court’s role in facilitating policy enactments, as well as blocking them. On average, slightly more than 25 percent of the cases that turn on constitutional evaluation of federal statutes involve judicial invalidation in whole or part. Notwithstanding a few epochal exceptions that Whittington covers in great narrative depth, the Court has acted more as a handmaiden of Congress’ policy agenda than as an attack dog or traffic cop. In his presentation of cases, Whittington builds the argument that the Justices have walked alongside the major political coalitions of each era, using negative judicial review to define the Constitution’s limits at the margins of major policy agendas rather than bending policy to their will undemocratically.
To be sure, there is enough self-selection suffused in this book to make full assessment of prevailing theories of judicial behavior impossible based on the quantitative data. Does the Court’s tendency to support most major enactments of durable majority coalitions mean that it is not generally counter-majoritarian, or that Congress trims its agenda to survive possible judicial nullification? Does the Court’s tendency to invalidate major enactments of co-partisans in Congress at about the same rate as that of anti-partisans mean that the Court is not generally partisan, or that co-partisans in Congress push harder on constitutional limits in expectation of a favorable hearing from their allies in court? Since we do not observe a counterfactual docket absent judicial review, it is impossible to say. However, the substantive context built into [End Page 163] Whittington’s narrative description of cases does some heavy lifting. Based on the early New Deal, we know how...