Story Time with Whittington: Judicial Review in Repugnant Laws and Commentaries on the Constitution

• Author: Adam M. Carrington
• Position: Associate Professor of Politics, Hillsdale College
• Pages: 377-403

Story Time with Whittington: Judicial Review in

Repugnant Laws and Commentaries on the

Constitution

ADAM M. CARRINGTON*

ABSTRACT

Keith Whittington’s book, Repugnant Laws, does much to refine our views of the

Supreme Court and its exercise of judicial review. Denying at once tales of an apo-

litical or subservient judiciary, Whittington shows the Court has consistently acted

as a partner within political coalitions but done so in its own, unique way. This ar-

ticle compares his findings with the view of the judiciary articulated by Justice

Joseph Story in his Commentaries on the Constitution of the United States. Many

might assume that the two works are at odds over the purpose and practice of the

Supreme Court. However, I explain how these works overlap significantly in their

arguments and refine each other helpfully in their disagreements. Both show the

need to consider theory in light of experience and the nature of judicial power in

light of popular consent as well as Constitutional rights. Together, these two works

help contemporary considerations of how we can understand the judiciary as a

legitimate but distinct part of republican government.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378

I. THE DESCRIPTIVE IN THE PRESCRIPTIVE . . . . . . . . . . . . . . . . . . . . . 380

II. COURT AS POPULAR INSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . 383

A. Popular Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384

B. Constitutionalism and the Rule of Law . . . . . . . . . . . . . . . . . . 386

C. Limits of Judicial Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388

D. The Pressure of Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389

III. THE COURT AS POLITICAL INSTITUTION . . . . . . . . . . . . . . . . . . . . . . 391

A. Defender of the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . 391

B. Protect Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403

* Associate Professor of Politics, Hillsdale College. © 2021, Adam M. Carrington.

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INTRODUCTION

In his new book Repugnant Laws, Keith Whittington describes the “story” that

“Americans sometimes tell themselves . . . about the Supreme Court.” This story

sees the Court as “removed from politics” and therefore above the partisan

divides that are perennial in and between the other branches. In monastic-like

seclusion, the Court guards the Constitution’s “fixed limits on the arena of politi-

cal choice,”

1

often under the banner of protecting minority rights against majority

oppression.

Whittington finds this account problematic. He understands the Court instead

as a “political institution.” The Court serves as a “coalitional partner” within pop-

ular majorities. In that role, the Court makes its own particular contributions and

acts on its own, distinct priorities. But it does so as part of, not against or even

detached from, prevailing political coalitions. Whittington comes to this conclu-

sion from a fresh and impressive database cataloging the judicial review of

congressional statutes. The database alone will be foundational for future scholar-

ship. Moreover, the accompanying narrative will prove consequential for subse-

quent appraisals of the Court, whether normative or descriptive.

Repugnant Laws focuses on the appraisals of judicial scholarship in the 20

th

and 21

st

centuries. On the normative front, Whittington discusses Alexander

Bickel’s “Counter-Majoritarian difficulty.” Bickel argued that judicial review

faced an inherent legitimacy problem in a popular government because “it

thwarts the will of representatives of the actual people of the here and now; it

exercises control, not in behalf of the prevailing majority, but against it.”

2

On the

descriptive front, Whittington sets out responses to Bickel’s thesis claiming that,

whatever its theoretical salience, the Counter-Majoritarian difficulty does not

exist in practice. Robert Dahl, in particular, declared that the Court overwhelm-

ingly rubber-stamps the majority will as expressed by congressional statutes. For

better or worse, the Court reinforces popular rule, not undermines it.

Normatively, Repugnant Laws avoids an explicit stance on the justice of judi-

cial review, though it does express concern that discussions of it too often occur

unmoored from examination of historical practice. Descriptively, Whittington

argues that the Court’s use of it falls somewhere between Bickel’s assumptions

and Dahl’s observations. Its role as “coalitional partner” means it exercises more

independence than a dutiful soldier but more conformity than the purely apolitical

counter-tale would suggest.

Repugnant Laws delivers a worthy interaction with these scholarly schools of

thought. But, as Whittington notes, discussions of judicial review did not origi-

nate with Bickel or Dahl. Many scholars of note outside the modern academy

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

FOUNDING TO THE PRESENT 285 (2019).

2. ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF

POLITICS 16–17 (2d ed. 1986).

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