Keith E. Whittington

“Interpose Your Friendly Hand”: Political Supports for the Exercise of Judicial Review by the United States Supreme Court

The exercise of constitutional review by an independent and active judiciary is commonly regarded as against the interest of current government officials, who presumably prefer to exercise power without interference. In this article, I advance an “overcoming obstructions” account of why judicial review might be supported by existing power holders. When current elected officials are obstructed from fully implementing their own policy agenda, they may favor the active exercise of constitutional review by a sympathetic judiciary to overcome those obstructions and disrupt the status quo. This provides an explanation for why current officeholders might tolerate an activist judiciary. This dynamic is illustrated with case studies from American constitutional history addressing obstructions associated with federalism, entrenched interests, and fragmented and cross-pressured political coalitions.

Executive Power in American Institutional Development

Many scholars of American politics implicitly or explicitly assume a model of congressional dominance. This standard narrative has been made explicit in principal-agent models of interbranch relations, in which the executive serves as a mere agent of the legislative principal. There are important limitations to the applicability of principal-agent models in the political context, and the assumption of congressional dominance obscures many important features of American politics. Over the course of American history, institutional development has often been driven by either autonomous executive action or conflicts between Congress and the executive. The argument is illustrated by reference to three cases: the growth of the federal extension service, the rise of national security intelligence operations, and the growth of the presidential impoundment power.

Revisiting Tocqueville's America Society, Politics, and Association in the Nineteenth Century

The concept of social capital has revitalized the study of civil society. Alexis de Tocquevilles examination of 19th-century America is a major source of inspiration for much of this work. Tocquevilles analysis has been used to help support the idea that a strong civil society is crucial to democratic success. A reconsideration of Tocquevilles analysis, and, more important, of his American case, however, suggests that an active civil society is not an unalloyed good for democratic politics. A strong society can be not only a support but also a threat to democracy and liberal democratic ideals. Ones evaluation of the health of democratic polities must depend on a study of the effects of political institutions and constitutional structures, as well as of civil society.

Taking What They Give Us: Explaining the Court's Federalism Offensive

Over the past decade, the Supreme Court has been unusually active in striking down acts of Congress in the name of federalism. The Courts activism in this area is particularly striking since the judicial enforcement of federalism had largely been abandoned since the New Deal. The article offers a political explanation for the Courts federalism offensive. The federalism offensive can best be understood as a product of the Courts taking advantage of a relatively favorable political environment to advance a constitutional agenda of particular concern to some individuals within the Courts conservative majority. The article elaborates each of these elements that have been supportive of the Courts actions, indicating the value of the new institutionalism to explaining judicial behavior and explaining why the Courts recent actions are distinct from the Courts actions leading up to the Court-packing plan and the judicial retreat of 1937.

Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning

Conflicts between the Supreme Court and the president are usually regarded as grave challenges to the Constitution and a threat to judicial independence. Such claims misrepresent the nature of these presidential challenges, however. In doing so, they paint an unflattering and inaccurate portrait of American politics and underestimate the strength of American constitutionalism. This article reexamines historical presidential challenges to the judicial authority to interpret constitutional meaning. It argues that rather than being unprincipled attacks on judicial independence, such challenges are best regarded as historically specific efforts to reconsider the meaning and future of American constitutional traditions in times of political crisis and constitutional uncertainty.

Dworkin's “Originalism”: The Role of Intentions in Constitutional Interpretation

Ronald Dworkin has criticized traditional theories of constitutional original intent by arguing that the constitutional text embodies multiple layers of intention. Abstract principles are among these layers of constitutional intent, and those principles should be the primary focus of a method of constitutional interpretation concerned with fidelity to the Constitution and the intentions of the Founders. This article argues that Dworkins reconceptualization of originalism is theoretically flawed. It may be possible to construct a normative theory requiring that the judiciary always enforce abstract constitutional principles in accord with current substantive ideals. Such a theory, however, cannot be reconciled with or be required by an originalist interpretive method primarily committed to fidelity to founding intent.

The Road Not Taken : Dred Scott, Judicial Authority, and Political Questions

The Supreme Courts decision in Dred Scott v. Sandford is widely regarded as among the worst decisions it has ever made. In addition to embracing reviled substantive values, the decision deeply wounded the Courts status and authority. By embracing a theory of judicial supremacy that held that the Court alone could resolve all important constitutional disputes, however, the Court had been gradually moving toward such a debacle. An important Jeffersonian tradition criticized the Court for encouraging political actors to forego their own constitutional responsibilities. The dissenting opinion of Justice Benjamin Curtis suggested a more appropriate course for the Court, one that carved out a clear place for the exercise of judicial review but that recognized an important sphere of constitutional politics outside the judiciary.

Reconstructing the Federal Judiciary: The Chase Impeachment and the Constitution

Only the United States supreme court justice has ever been impeached. In January 1804, the House of Representatives began a formal inquiry into the official conduct of Associate Justice Samuel Chase and approved eight articles of impeachment in November of that same year. The Senate held a trial of the justice in February 1805, which concluded with his acquittal on March 1. On the final article of impeachment, Chase escaped removal by four votes.

The Supreme Court in Politics

The U.S. Supreme Court is an important political institution. Nonetheless, general political histories of the United States give little attention to the Court and its justices. The appointment of justices and the decisions of courts are mere footnotes, at best, in the history of presidential administrations. Perhaps this reflects the relative insignificance of the judiciary and its actions on the broader political stage. The work of the Court pales in comparison with wars, elections and legislative struggles. The history of the Court has instead been relegated to more specialized accounts. Often those accounts were written from a primarily legal perspective or framed in terms of a history of constitutional law. The relationship between politics and the judiciary was pushed into the background. For many years, the classic one-volume history of the Court has been Robert G. McCloskey’s The American Supreme Court (4th ed., revised by Sanford Levinson, 2004). Originally published in 1960, The American Supreme Court situated the history of the Court within politics. McCloskey’s concern was to describe the Court as an “agency in the American governing process, an agency with a mind and a will and an influence of its own,” which used the law to achieve or try to achieve results (p. xv). The Harvard political scientist hoped to set aside the legalistic suggestion that the justices were primarily working out the logic of the law. The justices had agency in determining the course of public policy, and the Court was an agency within the structure of the government that made and implemented policy. The Court’s power was both real and fragile. The Court’s story, according to McCloskey, could “be broadly understood as an endless search for a position in American government that is appropriate” to the political era and the “subtle limits of judicial capability” (p. 15). A central lesson of his account, he concluded, was that the historical Court had been “fully alive to such realities as the drift of public opinion and the distribution of power in the American republic” (p. 246). The point was not that the justices “slavishly” adjusted themselves to public

On Pluralism within Originalism

The existence of multiple modalities of constitutional argumentation in judicial and legal practice has fed skepticism about the viability of originalist theories of constitutional interpretation. Why should we convert a pluralistic social practice in which there are multiple available forms of constitutional argument into an exclusionary one, in which originalist arguments trump all others? This paper attempts to clarify the place of pluralism within originalism. Originalism need not imply the irrelevance or inappropriateness of other forms of constitutional argumentation, and the existence of a pluralistic discourse in constitutional interpretation does not by itself suggest that originalism is radically at odds with current practice. Originalists should, in principle, be open to the use of various forms of constitutional argumentation so long as such arguments are disciplined to the overarching goal of discovering and implementing the original meaning of the Constitution. What they must resist is the appeal to alternative modes of constitutional arguments as possible trumps to known constitutional meaning, but they can embrace a variety of forms of constitutional argumentation that can supplement and help illuminate original meaning.