Repugnancy and Restraint: A Commentary on Keith Whittington's Repugnant Laws

• Author: Nancy Maveety
• Position: Professor, Department of Political Science, Tulane University
• Pages: 425-446

Repugnancy and Restraint: A Commentary on

Keith Whittington’s Repugnant Laws

NANCY MAVEETY*

ABSTRACT

Keith Whittington’s Repugnant Laws makes the case for a more nuanced

understanding of the relationship between the U.S. Supreme Court and political

majorities in the American governmental system. His study of horizontal judi-

cial review of congressional statutes reveals that the Justices often construct

and further congressional power in the face of constitutional challenge, acting

to fine-tune the constitutional commitments of successful coalitions or political

regimes. Judicial independence thus has a conditional quality, with the Court

and its controlling majorities integrated into and doing the work of the domi-

nant or ascendant political coalition.

This article addresses the implications of his findings regarding the systemic

effects on judicial behavior and the judicial role. I argue that Whittington’s

work challenges legal scholars to reconsider the practices of judicial suprem-

acy, both historically and developmentally. His Repugnant Laws conveys a

strong message about the repugnancy of judicial restraint as an empirical or

normative objective, suggesting some bracing lessons to draw about the rela-

tionship between the Supreme Court and the democratic state.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426

I. OVERVIEW OF THE WHITTINGTON THESIS . . . . . . . . . . . . . . . . . . . . 428

II. OF EXECUTIVE POWER AND HORIZONTAL JUDICIAL REVIEW. . . . . . 429

III. OF THE NATURE OF THE JUDICIAL ROLE. . . . . . . . . . . . . . . . . . . . . 432

IV. OF THE PRACTICES OF JUDICIAL SUPREMACY . . . . . . . . . . . . . . . . . 436

V. THE REPUGNANCY OF RESTRAINT . . . . . . . . . . . . . . . . . . . . . . . . . 438

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444

* Professor, Department of Political Science, Tulane University. © 2021, Nancy Maveety.

425

INTRODUCTION

Toward the close of his discussion of the Lochner Court’s consideration of the

scope and limits of congressional power, Keith Whittington specifically mentions

nineteenth-century jurist Thomas M. Cooley’s constitutional theory. As Whittington

writes in Chapter Five of his Cooley Prize-winning book Repugnant Laws: Judicial

Review of Acts of Congress from the Founding to the Present:

Thomas Cooley, the influential jurist from Michigan . . . emphasized that the

very purpose of a written constitution is to impose ‘a limitation upon the

powers of government’ and preserve ‘the enjoyment of the rights and powers

which [the citizenry] possessed before the constitution was made.’

1

Whittington goes on to explain that Progressive-oriented critics writing during

the early twentieth century feared that “too often, the lawyers and judges who

held sway on the Lochner Court agreed with Cooley”—and not with “the vision

of the Constitution as an instrument of popular power.”

2

Yet, as Whittington then

concludes, regarding the Fuller-White Court’s stance to shield powerful business

interests from the effects of social reform policies: “On occasion, the Court [so]

deployed the Constitution ...but more often, it understood the Constitution to be

a Progressive instrument that empowered Congress to respond creatively to new

social problems and political demands.”

3

The above passage is not only apt for the occasion at hand—honoring an

exceptional book that advances our understanding of and commitment to the writ-

ten Constitution—but is also telling for its encapsulation of Whittington’s project

and its contributions to constitutional and Supreme Court studies. Chief Justice

and Professor Thomas Cooley’s treatise Constitutional Limitations remains a

standard-bearer of a particular philosophy of constitutional interpretation: that

which emphasizes the document’s structural limits and constraints as the key to

understanding its operation to protect individual rights.

4

Its author is the name-

sake of the prize we celebrate in this symposium, and Whittington’s book is a

worthy and highly appropriate recipient of that honor. But what Whittington’s

book also makes clear is that, ironically, even when the Supreme Court was alleg-

edly at its most “Cooley-esque”—at least to the minds of its Progressive-era

critics—it was engaged in the project of utilizing its power to act as a nation-

builder and, generally speaking, a supporter of the powers of the national legisla-

ture. During this period of supposedly autonomic laissez-faire jurisprudence, the

Court “rarely blocked a mobilized political majority on an important point of

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

FOUNDING TO THE PRESENT 168 (2019).

2. Id.

3. Id. (emphasis added).

4. THOMAS COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE

LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (2d ed. 1871).

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