Party Coalitions and Supreme Court Politics: Additional Lessons from Whittington's Repugnant Laws

• Author: Howard Gillman
• Position: Chancellor and Professor of Law, Political Science, and History, University of California, Irvine
• Pages: 405-423

Party Coalitions and Supreme Court Politics:

Additional Lessons from Whittington’s

Repugnant Laws

HOWARD GILLMAN*

ABSTRACT

In this review essay, I elaborate on the lessons regarding the U.S. Supreme

Court’s exercise of judicial review in Keith Whittington’s magisterial book

Repugnant Laws. These include his fundamental challenges to our under-

standing of the origins of judicial review, the relative importance of Marbury

v. Madison, the empirical assumptions underlying the so-called counter-

majoritarian difficulty, and the relative “activism” of the Supreme Court at

different times in American history. Central to Whittington’s analysis is his

adoption of a “regime politics” approach to the study of courts, and I elabo-

rate on what it is about this approach that allows Whittington to successfully

challenge so much conventional wisdom. Finally, I suggest how we might

adapt Whittington’s analysis to the Trump Era. Because most of Whittington’s

major conclusions about Supreme Court politics assume the existence of

dynamic party systems with significant intra-party cleavages, I explore how

Supreme Court politics might be different during an extended period of severe

party polarization, increasing ideological coherence between the parties, and

persistently divided government.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406

I. THE WRECKAGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408

II. THE METHOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411

III. APPLICATIONS TO THE TRUMP ERA . . . . . . . . . . . . . . . . . . . . . . . . . 416

CONCLUSION: NEXT STEPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421

* Chancellor and Professor of Law, Political Science, and History, University of California, Irvine. I

am grateful to everyone involved in the Georgetown Center for the Constitution Third Annual Thomas

Cooley Book Prize, and especially to Keith Whittington for his comments on an earlier draft. © 2021,

Howard Gillman.

405

INTRODUCTION

No better book has ever been written about Supreme Court politics and the dy-

namics of American constitutional history than Keith E. Whittington’s magister-

ial Repugnant Laws.

1

As a result of this work, firmly established assumptions

about the nature and scope of judicial review are demolished. Origin stories must

be revised. Melodramatic and heroic narratives of constitutional battles are right-

sized and made less ideological. Databases that have been relied on by scholars

for decades are revealed to be deeply flawed. Major debates within American

constitutional theory are mooted because of faulty premises. Dominant

approaches to the study of the Supreme Court by leading political scientists can

be seen as ridiculously shallow or politically naı

¨ve by comparison. Important

new lines of inquiry become clear. If the sociology of the disciplines of law and

political science would actually allow established scholars to reconsider their

positions in light of comprehensive and incontrovertible evidence (unlikely), then

Repugnant Laws would be a wrecking ball.

In this review essay, I will amplify Whittington’s own account of the wreckage—

or, to put the point more conventionally, I will amplify his account of approaches and

assumptions among scholars of judicial review that should be reconsidered in light of

his study. These include but go beyond Whittington’s emphasis on issues such as the

origins of judicial review, the relative importance of Marbury v. Madison, the

frequency of judicial review, the empirical assumptions underlying the so-called

counter-majoritarian difficulty, and the relative “activism” of the Supreme Court at

different times in American history. Because the book is framed around the specific

topic of judicial review, it is likely that many readers will focus mostly on these les-

sons. Still, given the richness of the analysis, I would like to play my part to highlight

other important lessons.

After identifying some of the necessary revisionism that should take place, I

will discuss how exactly Whittington produced such a novel and impactful analy-

sis. It is easy to assume that his insights are primarily a result of his astonishingly

systematic and comprehensive review of the Court’s record. How can we not be

impressed by someone who reads every volume of U.S. Reports cover to cover,

searching for what others have missed with a prospector’s eye for finding the

gold among and within the sand and rocks, and then translates those efforts into a

database, the likes of which judicial scholars have rarely seen in terms of its com-

prehensiveness and the intelligence of its construction?

2

Still, while the database is an extraordinary feat, it is not the feature of the study

which leads to his most important insights. More important is Whittington’s political

1. See KEITH E. WHITTINGTON, REPUGNANT LAWS: JUDICIAL REVIEW OF ACTS OF CONGRESS FROM

THE FOUNDING TO THE PRESENT (2019) [hereafter WHITTINGTON, REPUGNANT LAWS].

2. Keith E. Whittington, Judicial Review of Congress Database, https://scholar.princeton.edu/

kewhitt/judicial-review-congress-database [https://perma.cc/3NU6-X45U] (last visited Feb. 20, 2021).

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