The Supreme Court as a Symbol in the Culture War

• Author: Keith E. Whittington
• Position: William Nelson Cromwell Professor of Politics, Princeton University; Visiting Professor, Georgetown University Law Center
• Pages: 363-376

PAPERS

The Supreme Court as a Symbol in the Culture War

KEITH E. WHITTINGTON*

ABSTRACT

Repugnant Laws makes use of the Judicial Review of Congress database, a

new, original, and publicly accessible database cataloging every case in which

the U.S. Supreme Court substantially reviewed the constitutionality of the appli-

cation of a provision of a federal statute. In doing so, it seeks to shed new light

on how the Court has navigated the ever-changing political environment and

how it has constrained, and empowered, Congress across American history.

This still leaves a great deal of our constitutional landscape to be explored.

Repugnant Laws provides only a passing glance at how the Court has inter-

acted with the executive branch and the extent to which it has been an ally or

foe of presidential power and particular presidents. This historical investigation

also raises questions about the extent to which the Court has entered a new po-

litical era. Political battles over the federal judiciary have intensified in recent

years, but it is not evident that the Court is a more significant political force

now than it was in the past. Like many aspects of our modern politics, the Court

has become a useful symbol in the culture war that can help heat up political

passions and mobilize political activists, even if the stakes for public policy

remain relatively small.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364

I. JOSEPH STORY AND THE POLITICS OF JUDICIAL REVIEW . . . . . . . . . 365

II. THE EXECUTIVE AS AN ADDITIONAL VARIABLE . . . . . . . . . . . . . . . 368

III. WHAT DOES MITCH MCCONNELL KNOW? . . . . . . . . . . . . . . . . . . . 371

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375

* William Nelson Cromwell Professor of Politics, Princeton University; Visiting Professor,

Georgetown University Law Center. I am thankful to Adam Carrington, Howard Gillman, Nancy

Maveety, and Randy Barnett for their helpful remarks. © 2021, Keith E. Whittington.

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