In Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present, Keith Whittington presents an extraordinarily comprehensive evaluation of the Supreme Court’s choices to invalidate or uphold federal legislation throughout US history. His careful exegesis of the universe of these cases makes the book essential reading for any scholar, citizen, or journalist interested in the interplay between Congress and the Court since the nation’s founding. The story he tells is a nuanced one involving a shifting and complex dialogue between Congress and the Supreme Court. And it is one that pierces several conventional “wisdoms” that typically characterize conversations about the Supreme Court in history—including the famous thesis by Robert Dahl that the Court rarely diverges from the preferences of the dominant political coalition in the elected branches.
The Court’s current situation makes the book even more compelling. As its reputation for independence and impartiality has come under attack and its popular approval rating has dipped, it is useful to place the current debate about the Court in historical perspective. Professor Whittington’s analysis ends in 2018, and thus we do not benefit from what would be, no doubt, his fascinating reflection on the Court’s more recent activities since the Trump appointments. Nevertheless, after reading the book, one cannot help but appreciate that the Court’s current situation is but one among many oscillations in its reputation and power vis-à-vis Congress and the president.
Although sprinkled throughout with interesting tables and graphs depicting quantitative data on cases of judicial review, the book relies largely on a qualitative analysis of the Supreme Court’s cases upholding or invalidating federal legislation. Beginning with two chapters that theorize the power of judicial review in a democracy and explain its origins, the book follows with individual chapters discussing the Court’s activities within distinct periods: the founding to the Civil War, Reconstruction, the Lochner era, the New Deal and the Warren Court, the Rehnquist Court, and finally the Roberts Court. Perhaps because I am more familiar with recent cases under the modern conservative Court, I found the earlier chapters the most illuminating and fascinating because they shifted my understanding of those periods in the Court’s history.
For example, conventional wisdom would hold that from Marbury to Dred Scot, the Supreme Court experienced a lull in its willingness or opportunity to exercise the power of judicial review over congressional enactments. Yet Whittington effectively demonstrates that the Court was relatively active during this period in evaluating the constitutionality of federal laws, pointing out that “the highlight reel is not the game itself.” Expecting these early cases to be mundane, I was delighted to find them surprisingly engaging. Dealing with issues such as counterfeit coinage, arms smuggling, and the seizure of schooners with names like La Vengeance, the chapter catalogs fascinating disputes in which the Court crafted judgments to consolidate the new republic and strengthen its central government. It also provides excellent background on the more famous cases such as Marbury v. Madison and McCulloch v. Maryland.
The chapter on Reconstruction sheds light on the dynamics of the relationship between the Court and Congress during a fraught period in US history. Whittington describes the Court’s caution in challenging the Radical Republicans in Congress, although it did not wholly embrace a lapdog role. Instead, it stayed out of the way of Reconstruction through strategic decision making and focused on the fine-tuning of the constitutional regime after the Civil War. In another chapter that pierces conventional wisdom, Whittington shows how the Lochner Court—widely viewed as activist—demonstrated considerable deference to Congress, ruling most often to uphold important federal policies, rather than to strike them down. This tale of deference is typically lost in our focus on the Lochner Court’s choice to advance Social Darwinism as a theory of constitutional interpretation in the context of state economic regulations.
Whittington’s treatment of two constitutional revolutions—the post–New Deal switch in time and the Warren Court’s civil liberties decisions—provides the most effective foil against which to understand the modern Court. Once the Court made its strategic retreat after FDR’s court-packing shot across the bow, Court deference to expansive congressional action under the Commerce Clause and via delegation to administrative agencies became the rule rather than the exception. In contrast, the Warren Court revolution was far more focused on civil rights and liberties as enforced against the states. Although the Roberts Court’s activism (to the extent it exists) is more often compared to the Warren Court’s activism, the true comparator for the modern Court’s jurisprudence is the post–New Deal Court: it is that Court’s willingness to uphold congressional power that provides the most interesting foil to the modern Court. Whittington does masterful work in elucidating the underlying dynamics in the Court’s switch in time that saved nine, and he places the Warren Court in proper perspective relative to interbranch conflict.
The penultimate chapter focuses on the conservative Court under Rehnquist and Roberts. Once again, Whittington challenges the conventional wisdom by demonstrating that “the Court since the Warren era cannot simply be characterized as conservative when it comes to striking down federal laws” (p. 241). At the same time, this chapter makes some unusual observations. For example, Whittington notes that “Democrats might be consistently unhappy with the Roberts Court, but their unhappiness might be driven by cases in which the conservatives are upholding legislative action rather than striking it down” (p. 242). Perhaps that may be true in the future, but I am not sure that the evidence supports such a conjecture based on the current landscape and in the context of federal legislation. After all, the Roberts Court upheld the Affordable Care Act but struck down the Voting Rights Act and campaign finance reforms. I am not certain about which federal laws it has upheld—or is likely to uphold—that are repugnant to liberals. Nevertheless, this is a quibble. The chapter convincingly shows that the Roberts Court is, in the context of its review of federal legislation, far less activist than predecessor Courts under previous chief justices.
In his final chapter, Whittington tests the famous thesis by Robert Dahl that the Court largely shares the preferences and reinforces the policies of the dominant political coalition. Under this theory, the Court would be more likely to strike older rather than newer legislation. Relying on both quantitative and qualitative analyses of cases reviewing federal legislation through history, Whittington argues convincingly that Dahl’s thesis was, at best, time bound: there is no clear evidence that the Court tends to invalidate older legislation more than newer statutes. Nevertheless, Whittington does observe that the Court has more often operated “within dominant political coalitions than against them” (p. 278). He can draw these conclusions convincingly because of his thorough analysis of cases that uphold and those that strike federal legislation.
Repugnant Laws is suitable both for law school courses and graduate courses in political science. It will become the go-to reference book for observers of the Court who want to understand its interactions with a coordinate branch throughout US history and for those who seek to place the current Court’s activities into historical perspective. We will all be smarter after reading this book.
