Reviewing Judicial Review
2020-02-21 · Guest: Keith Whittington (Princeton University) · 52:12
History and impact of judicial review
Bob Zadek interviews Princeton Professor Keith Whittington about his book Repugnant Laws, exploring the history and impact of judicial review in the United States. They discuss the Supreme Court’s role in upholding or striking down federal legislation and how political and institutional pressures shape judicial decision-making.
Topics: Judicial Review, Supreme Court, Constitutional Law, Federalism, Separation of Powers, Repugnant Laws, Keith Whittington
Speakers: Bob Zadek, Keith Whittington
Introduction to Keith Whittington [00:17]
Bob Zadek: Hello everyone, and welcome this morning to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. Thank you so much for joining me this winter Sunday morning.
This morning’s guest, Keith Whittington, has written a book that has totally captured me. Keith’s book has caused me to be tossing and turning, and in my brain, so many questions are bouncing about. I almost couldn’t sleep in anticipation of this morning’s show. Keith is a professor at Princeton University. He’s the William Nelson Cromwell Professor of Politics at Princeton University. He is a frequently published author. More recently, he has written Speak Freely: Why Universities Must Defend Free Speech. And why must they? Of course they must.
Apropos of this morning’s show, Keith has just published a book with the title Repugnant Laws, where Keith examines in incredible detail, with wonderful datasets, what has been the history of the Supreme Court upholding or striking down laws enacted by Congress and signed by the president—striking down those laws as being unconstitutional. And when you think about that, it is one of the most interesting and, I think, unique among Western democracies, function to have an independent, totally independent judiciary, which with nine—now nine—it started at being five and the number varied as we know from prior shows—with presently nine unelected, serving-for-life judges, who by the way need not be attorneys, but they I believe almost always have been. Unelected government officials, judges sitting on the Supreme Court, which can with the stroke of a pen strike down laws enacted by the so-called political branches of government, that is those branches elected by the people—435 members of the House, 100 members of the Senate, and one president. The efforts of those political branches can be struck down as being unconstitutional by nine unelected officials. That’s about as undemocratic as government can be. Is that healthy for democracy? What has been the history of what has been called judicial review in this country? There is not a subject I can think of more profound that goes to the very heart of the operation of our government than that subject. And Keith is the perfect individual, author, scholar to explain this to us. Keith, welcome to the show this morning.
Keith Whittington: Thanks for having me.
Defining Judicial Review [01:42]
Bob Zadek: Now Keith, your book Repugnant Laws discusses, if you want to give it the broadest possible description, it discusses the topic of what has come to be called judicial review. Please explain for our listeners what judicial review is and how does it fit into the scheme of government.
Keith Whittington: Yeah, so judicial review is the practice of the courts in ordinary cases where they’re called upon to apply laws and the laws are challenged as being contrary to the requirements of the Constitution. The court claims it has the authority to determine whether or not that’s true, whether those laws are actually consistent with the Constitution, and if they’re not consistent with the Constitution, to refuse to apply them in the cases in front of them.
Somewhat remarkably, this is not a power that’s actually explicitly granted in the Constitution, although it was very quickly understood to be an implication of the way the Constitution was designed. And over time, it became a more prominent feature of the constitutional system in practice. But even our language of talking about this as the power of judicial review is a modern one. We didn’t have that term to talk about what the court was doing until the turn of the 20th century, when actually one of my predecessors here at Princeton, Edward Corwin, who was a constitutional historian, coined the term “judicial review” as a way of talking about this power the court was exercising.
The Tension of Co-Equal Branches [02:50]
Bob Zadek: So what’s interesting is judicial review is a profound power. It can undo the work of elected officials. And Americans, when they are taught about our system of government, they are taught we are a democracy. Whatever that means—that’s not a very helpful explanation, but we are taught it nevertheless. But we are a democracy where the ultimate determination of whether we shall be governed by a federal law, the ultimate group to determine that question, that profound question, is unelected.
So what does that—rhetorical question—what does that do to the concept that we are a democracy when ultimately the laws have to pass through the filter and get the approval of the only unelected of the three branches of government? So that’s quite an interesting concept. And also, Keith, as you have pointed out, it’s a concept, a strong, powerful concept, but it’s a concept the court created for itself. Is that a fair statement?
Keith Whittington: Well, it probably goes too far. I mean, certainly there was a narrative that emerges out of the populist and progressive era in the late 19th and early 20th century that really emphasized this idea that this is a power the judges just made up out of thin air and grabbed hold of and asserted. And they emphasized that point because they thought it was illegitimate and therefore courts should stop exercising this kind of power.
In some ways, there’s some truth in that in the sense that the Constitution doesn’t explicitly give the court the power of judicial review. The courts have instead asserted it in their own opinions and through their own actions and argued that it is implicit in the Constitution itself. The nature of a written document that is the fundamental law requires that the court refuse to apply statutes, mere legislation, that’s in conflict with the Constitution.
But it’s also true that I think this was widely anticipated by many of those that were drafting the Constitution, both the federal Constitution in 1787, but also state constitutions before that. It’s widely expected the court will exercise some kind of power like this. There’s places in the constitutional text where it’s anticipated, but they don’t have a very clear view as to what exactly the practice is going to look like. They certainly don’t anticipate how important this practice is going to become over time. So I don’t think it’s the case that judges, including Chief Justice John Marshall, just made it up, but on the other hand, they certainly needed to make it clear as to where this power comes from and clear what exactly the practice was going to look like.
The Founders’ Vision and the Court’s Role [04:15]
Bob Zadek: Now, we are told when we study government, we are told that we have a system of executive, legislative, and judicial, and we are told they are three co-equal branches of government. Now, co-equal—let’s discuss just for a moment the concept of co-equal. How can that concept be applied if one branch, the judicial branch, can decide as a matter of the final word, can decide that a statute which a majority of Congress supported, the president elected by a majority—at least an electoral majority—signed, and the Supreme Court said, “No, no, it doesn’t pass the constitutional test.” So giving the Supreme Court the last word, does that belie to some degree in your opinion the concept of co-equal branches of government, or is that consistent with the concept?
Keith Whittington: Well, it certainly raises questions, and it’s been a controversial power for the court to exercise over time for exactly this kind of reason—a question of whether or not you are setting up the courts as being above the other branches of government and maybe even above the people themselves. So there have been some classic books written with titles like Government by Judiciary, complaining about exactly this kind of claim—that really what you’ve done is set up a government that’s not a democracy, but instead is ultimately a government that’s run by the courts because the courts have the last word on the constitutionality of legislation.
Some of the terms that were floating around to describe this power before we sort of settled on the language of judicial review really emphasize that kind of claim. And so some people were suggesting we ought to call this power the “judicial veto,” “judicial nullification of laws,” “judicial supremacy.” And all that sort of tends to emphasize the ways in which the court was exercising a kind of legislative power of repealing laws that Congress had adopted.
I think the court would emphasize, and advocates of this judicial power would emphasize, that the courts aren’t repealing laws, they’re just refusing to apply them. And they’re only refusing to apply them in this very narrow circumstance of when they conflict with the Constitution itself. And then the claim further is that the Constitution itself is adopted by the people, and as a consequence is the most fundamental law. And so the people ultimately have control over the text and content of the Constitution, and all the courts are doing is making sure that legislatures don’t violate that more fundamental law that the people themselves had adopted. But it certainly creates a tension between the court and other institutions and raises questions about which one is more powerful within the political system as a whole.
Bob Zadek: And of course, Alexander Hamilton, I believe, observed that the court—I think it was Hamilton—is the weakest branch of government because it has no army, no police force to enforce its rulings, no power of the purse—it can only spend money that is given to it by the other branches of government. So in some ways, the court is the weakest branch, not the most powerful branch. Just, it’s interesting, that tension.
Now Keith, before we get into the book and the methodology of your book, because the methodology is so interesting, before we get into that, if we didn’t have, if the concept of judicial review never was created as a judicial concept, how do you imagine, how did the Founders perhaps imagine the system would all work? We have a Constitution which primarily limits, besides setting up the mechanics of government, it is drafted to limit the power of government and to preserve the rights of the people. It is a document that describes the relationship of people to their government. Without judicial review, how do you imagine—and I’m really asking for an imagination—how do you imagine our country would have operated if there was no such thing as judicial review, and what would have happened to the principles of our founding documents, the Declaration and the Constitution?
Keith Whittington: Yeah, it’s a good question. I guess I am skeptical that we would have adhered as closely as we have—and there’s certainly arguments we haven’t adhered all that closely—to the Constitution over time. But I think there’s certainly questions about whether we would have even done that much if not for the courts being there to help remind us about our constitutional obligations and try to pull us back.
I think the constitutional framers tended to not think courts were going to be a particularly important players in this regard, even if they thought the courts might sometimes have to step in in this way. But they really, especially the people like James Madison, for example, were placing their bets on the importance of things like bicameralism, the presidential veto, the ways in which legislators are elected, as all being ways in which people in government would be more likely to adhere to the Constitution, be less likely to violate the Constitution. They really counted on the idea that Congress would take their constitutional responsibility seriously, that they’d be debating about constitutional issues and what their constitutional limits are, that they would respect those limits voluntarily. But when they didn’t, that things like the presidential veto would help keep them in check and try to restrain its power. And ultimately that the voters would care about the Constitution, and if they saw legislators violating the Constitution, the voters would vote to keep the Congress in check and try to restrain its power.
I think we probably are more pessimistic about the ability of all those kinds of mechanisms to work very effectively to keep Congress within the bounds of the Constitution. But I think that’s much more what the founding generation was hoping for and really counting on.
Bob Zadek: To say pessimistic, you have just uttered the first overstatement, or understatement rather, of the hour. Of course we would be pessimistic to expect that people who aspire to be legislators or in the executive branch, they are motivated by a certain mentality, a certain worldview, and to expect that they would voluntarily control their motivation and their urge to get reelected, have it be controlled by, “Uh oh, we better not violate the Constitution,” is kind of absurdly aspirational.
Methodology: Analyzing 1,300 Cases [05:41]
Bob Zadek: But okay, we don’t have to discuss that. We have too much content to discuss. Now tell us about, tell us about your book. How did you set about to study and see what can be learned from an analysis of Supreme Court cases, and specifically cases that upheld or rejected statutes under the test of constitutionality? How did you go about the process, and give us some idea of the magnitude of the process that you went through, just to show how significant your scholarship has been, and what was sort of the big bottom-line conclusions statistically about what you found?
Keith Whittington: Yeah, I’ve been long been interested in the way the court exercises judicial review, what justifies it, how significant is it, what role it plays within the constitutional system. There’s all kinds of really fascinating questions there. And one of the really important empirical questions is just how significant has the court actually been within the system in keeping other government officials in line and restricted to the terms of the Constitution? How much has the court actually gotten in the way of what other government officials are trying to accomplish?
Sometimes the court is pitched as a really anti-democratic force, a force that resists political majorities. Political scientists are often a little skeptical about the likelihood that’s true, just because it seems difficult for a court that is both institutionally relatively weak, but also has a bunch of members who are selected by politicians to sit on the bench, just how resistant is that court going to be to what politicians are doing?
And so I thought I’d embark on this project of trying to look at it in this very specific context of how the US Supreme Court evaluated the constitutionality of federal laws over time, and how much they were pushing back on Congress across its history. What I initially thought that would go pretty quickly and it’d be a relatively small book, but the more I sat down and started thinking through that project and starting to work on it, I realized that one, at best I only knew sort of half the story. So I did have some sense about when the court was striking down laws, but not a very good sense at all about when the court was upholding laws, because we just hadn’t studied that very much and hadn’t come up with a real list even of or to identify the cases in which the court had upheld laws.
And moreover, then I was also somewhat skeptical that we had a very good handle on how often the court had refused to apply laws because of constitutional concerns. Again, my predecessor Edward Corwin, the same person who coined the term judicial review, also at the request of Congress in the early part of the 20th century, assembled a list of cases in which he thought the court had struck down laws as being unconstitutional. And that’s been our standard list that we’ve used ever ever since. Obviously, it’s been updated over time, in this case by the Congressional Research Service in order to keep track of how often the court does this.
But I started to worry that that list was incomplete. And so I went back to the starting point, started reading cases the court had decided, cast a very wide net trying to capture all the cases where I thought the court might be talking about the constitutionality of federal laws, and that sort of led me to read a little over 10,000 cases trying to find the right ones, and sort of settled on a list I think is fairly comprehensive of a little over 1,300 cases in which the court has substantively evaluated the constitutionality of a federal law in a case in front of them, either to decide to uphold that law as being within the bounds of the Constitution, or to say they had to strike it down or narrow its reach in order to keep it within the confines of the Constitution.
Ultimately, I think the court has only struck down laws in about a quarter of those cases. So most of the time when the court hears a constitutional challenge to an act of Congress, the court winds up upholding the act of Congress and say that Congress is perfectly fine within the bounds of the Constitution. And I think in part as a consequence, the court has really contributed to the growth of congressional power over time because most of the time the court is really endorsing what Congress does, even when what Congress is doing is highly innovative and creative, even unprecedented relative to what Congress had done before. And even if lots of people think that what Congress is doing exceeds the bounds of the Constitution, the court has been very likely to say that what Congress is doing is just fine.
The Court’s Discretion and Deference [07:11]
Bob Zadek: What’s interesting is I found the statistics—and obviously the statistics have to have some asterisk attached to them. For example, the court isn’t it true that the court must take certain cases? There’s mandatory jurisdiction. Other cases, four votes on the of justices can have the court accept for cert and decide cases. So the court has some discretion over what cases they will accept. Sometimes they have no discretion because they have mandatory jurisdiction.
But as to the cases they decide to accept, why would they—well, they would only accept a case if they seemed to be predisposed to find the act constitutional, only perhaps to clear up a dispute between the circuits. Otherwise, why bother to accept cert? So I’m surprised they decided so many cases where they found the statute constitutional, because unless the lower court found it unconstitutional and they had to right that wrong. But to some degree, the statistics are a function of the court exercising discretion as to what cases it will take.
Keith Whittington: Yeah, it’s a bit of a puzzle as to why the court spends so much time upholding laws. As you noted, through much of the court’s history, it had mandatory jurisdiction, so it really didn’t have control over which cases it was hearing. It had to hear cases that were brought to it on appeal. And so one thing you might expect then is during that period, it was hearing a lot of cases that it thought—that the court would have thought the constitutional questions are pretty easy, and there’s a bunch of cases then it would be deciding where it would be upholding the law against constitutional challenge, and if it had its choice, it might not have even bothered to take that case in the first place.
So I really expected going in that there’d be a lot more of those cases upholding laws in the first part of the court’s history and a lot fewer of those kinds of cases in the later part of the court’s history, because in the early 20th century, the court mostly gets control over its own docket. And so the court continues to hear some cases on mandatory appeal, but that’s a much smaller fraction now than it used to be. And yet the court, even through the 20th century, continued to take lots of cases in which it was going to uphold the law and say that the law was perfectly fine.
Very recently, the court has done a lot less of that. So the Roberts Court actually does not take very many cases where they’re going to uphold the law. But for a long period of time, the court continued to take cases voluntarily and then say that the law is constitutional. I do think part of the reason why is that partially it’s sending signals to lower courts. So they’re trying to tell the lower courts to where the constitutional boundaries are and to uphold laws of this type where the lower courts might be going off in a different direction.
I think partially sometimes the court is sending signals to Congress itself and to outside political actors, endorsing certain kinds of constitutional views and reassuring people that the Congress actually does have certain constitutional powers and can make certain kinds of legislation. But it is a little puzzling as to just why the court spends as much time as it has across its history upholding laws, because you would think most naturally that the court would be most interested in taking cases in which they think Congress has exceeded its powers and as a consequence needs to have its law narrowed or even struck down.
Politics and Constitutional Values [08:31]
Bob Zadek: Now, I will confess to my listeners and to you, Keith, that I suffer from an intellectual infirmity. I see the world very comfortably as black and white. There is no, in my world, there are no shades of gray. And therefore, one of the lessons of your book, and it comes out throughout the book, is that well, the Supreme Court doesn’t quite make a decision simply by doing some detailed analysis of the Constitution and deciding in a pure as a jurist only looking at the law what should be their decision.
But they are influenced by politics. They are influenced by paying attention, as Chief Justice Roberts does, to institutional health, preserving the respect of the Supreme Court. There are lots of other factors at work that affect the working of the Supreme Court, particularly when it comes to constitutionality, when they try to test what’s going on in the country at large. And when we come back, Keith, I’m going to ask you to comment if you will about how much of the decision-making that you saw in your analysis was a product of something other than a pure, cold analysis of the law, of constitutional law, and how much over history has the Supreme Court been influenced in their decisions by those outside forces.
This is Bob Zadek. I’m spending a wonderful morning with Keith Whittington, whose recent book Repugnant Laws examines how the Supreme Court operates when it strikes down or does not strike down the acts of Congress signed by the president. We’ll be back in 30 really short seconds.
[Commercial Break]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. The show of ideas, never once the show of attitude. Thank you for joining me this morning with my conversation with Keith Whittington, who has written a wonderful book, a must-read, called Repugnant Laws, where Keith examines and looks under the hood of Supreme Court operation since the founding of our country through and including this morning to examine how exactly the Supreme Court operates when it strikes down laws as being unconstitutional or affirms laws as being constitutional.
Now Keith, I’m going to invite you to break my heart right now. We have described the three branches of our government into the political branches, those where the voting public has a say in who serves as president, as senators, and members of the House. And we have the non-political branch, which is the Supreme Court. Now, it’s not quite non-political because the Supreme Court judges are appointed or nominated for office by the president, who himself or herself is elected, and are confirmed by the Senate, who are elected. So it’s not quite a-political, it’s one step removed. But in your analysis of the operation of the Supreme Court in striking down or not striking down laws, how political has the decision-making process been done? And of equal importance to me because it’s so interesting, has that dynamic changed over the 240-odd years of our country’s existence?
Keith Whittington: Yeah, certainly the court is shaped by politics and how the justices operate is shaped by politics. I think the really interesting questions are exactly how and whether or not it’s avoidable and even whether it’s particularly disagreeable depending on how they do it.
One kind of politics I think the justices do pay attention to and matters at some points more than others is a very fundamental institutional politics. And so there have been times when the court has felt very threatened, wasn’t confident about the future of its own institution, and there are questions then about how much the court should try to annoy politicians and get in their way when those politicians might push back rather hard. And so Alexander’s warning that the court is the least dangerous branch does emphasize this idea that the court is weak and politically vulnerable, and if politicians really want to defang the court, they could. And so as a consequence, I think the court has sometimes been very cautious about its willingness to get in the way of what other branches are doing. And that’s particularly true in moments of real crisis in the country. So in the midst of serious wars, in the midst of economic crisis, the court has often been reluctant to step in front of Congress when Congress seems really committed to doing things even when the court thinks those things are wrong.
I think there’s also a kind of politics which we tend to focus on much more and I think would be even more troubling if it influenced the court, and I think actually is pretty rare on the court. And that is we might think of politics in a very ordinary partisan sense. There are, as President Trump sometimes likes to say, there are Republican judges and Democratic judges, and they’re just acting like Republicans and Democrats and advancing policies of that sort and rejecting policies that are contrary to those commitments.
I think that’s relatively rare that the justices simply act as pure partisans, that they’re acting as if they were wearing party labels on their sleeves and advancing those particular political interests of one or the other party. But what is much more common, and I think really hard to imagine how you’d ever reduce it or eliminate it from the system, is that justices reflect a set of constitutional values that are also politically contested. And so our parties organize themselves not only around policy disagreements and not only about who can win and lose elections, but they also organize themselves around a set of constitutional values. The Republicans and the Democrats disagree about what the Constitution requires, and we fight about that in the electoral arena, we fight about that in legislatures, and that carries over to courts. And so as a consequence, Republican presidents are more likely to select judges who adhere to one set of commitments and judicial philosophies, and Democrats are going to advance a different set, and those will get reflected in cases the court decides.
I think that’s particularly prominent in a set of cases that we would sort of traditionally think of as very politically controversial cases that we care a lot about in the larger political arena. It’s likely true that justices are going to disagree about those cases in ways that are very similar to how politicians disagree about those cases. And you can think about all kinds of cases like that—abortion, affirmative action, the Affordable Care Act, and the like.
Bob Zadek: Citizens United.
Keith Whittington: Absolutely, right. But it’s also true the court decides a whole bunch of cases that politicians don’t break out in very natural ways, the parties are not organized in particular ways about those kinds of cases, and the justices tend to agree among themselves to a much greater degree about the right outcome in those cases. We might think of those as cases in which the justices are behaving in their most lawyer-like fashion. And there are lots of cases like that where Congress has been really sloppy about what they’re doing, where Congress is just ignoring a set of constitutional rules or commitments or values that from the justice perspective is sort of obvious and that the Congress ought to adhere to. And one virtue of having an independent court is that the court is willing to clean those kinds of things up. And so a tremendous number of the cases in which the court has actually struck down laws or narrowed laws on constitutional grounds are cases that are not that politically controversial, they don’t make the front page of the New York Times, and they’re cases in which the justices themselves tend to actually be in a fair amount of agreement about how they ought to be resolved. And they’re acting in those cases precisely because they think Congress just is not being very careful or cautious about its own constitutional limits, and the courts are there in part to try to clean those issues up. So I think that’s something that we tend not to focus very much on because those are lower-profile cases, but they are hard to characterize as political in any sort of normal sense of the term, and maybe they’re the kinds of cases where we think the court is being most valuable.
Policy vs. Law in Public Discourse [10:11]
Bob Zadek: One of the things that I didn’t realize that was in your book is that there seems to be, and I think you would describe it as a healthy bias, but a bias nevertheless, that when the Supreme Court is deciding the constitutionality of acts of Congress, that they have this default, if you will, deference—this urge to try to find the act constitutional because otherwise they are overturning the majority will. Does that bias exist? And now in your opinion—and the beauty of an opinion show such as this one is you’re allowed to express an opinion and you don’t have to be right—so in your opinion, is that a healthy starting point, or should they start from a more neutral standpoint of not giving the benefit of the doubt, if you will, to acts of Congress in so far as constitutionality is concerned?
Keith Whittington: I think that is tends to be a bias of the justices and how the court operates. There are certainly times when the court is fairly explicit in saying that they ought to give the benefit of the doubt to acts of Congress and assume that legislatures aren’t violating the Constitution. I think there are times when the court is probably not giving that much of a presumption to Congress, that there are certainly times when the court is pretty skeptical that Congress is paying attention or trying very hard or acting within the bounds of the Constitution, and the justices are often very skeptical then about how Congress is behaving and whether or not they ought to get the benefit of the doubt. But certainly the court often gives lip service to the idea that Congress ought to get the benefit of the doubt.
And I think it’s a good question as to just how much of a benefit the Congress really deserves. I think it’s appropriate to think that they ought to have some in the sense that they are democratically elected and the court is not, and so the court ought to be somewhat cautious about rushing in to strike down laws that Congress has adopted. And the Congress would be entitled, I think, to more deference and respect if you thought Congress was actually doing a good job of paying attention to constitutional limits itself.
And so you do have these kinds of contexts in which we just disagree about where the constitutional limits are, and then it’s not surprising if you think your opponents are going to violate the Constitution because you just have disagreements about where the lines are. But there are lots of other contexts in which we think it’s fairly clear what the constitutional rules are and yet Congress just is not being very careful.
In the 19th century, it was common for Congress to have serious constitutional debates and it was quite evident they were taking their job seriously in that regard. They might not always adhere to the Constitution, but at least they are talking about the Constitution and trying to understand what it required. I think in the 20th century, the Congress has just become much less interested in worrying about what the Constitution means. They are much more willing to say, and in fact you see politicians say it all through the course of the 20th century, that “Don’t worry about the Constitution, the courts will clean it up if we get it wrong. That’s not our job to worry about what the Constitution means. We should just pass the legislation that we think our constituents want and let somebody else worry about what the Constitution requires.” And if that’s what Congress is doing, then it’s really hard to justify the court being very deferential, because then Congress isn’t even trying. They’re really counting on the court to wade in there and clean up its constitutional mistakes. And if the court then is trying to give the benefit of the doubt to Congress, then it really is going to allow a lot of constitutional violations to occur that really shouldn’t be allowed.
Bob Zadek: I find myself disagreeing, and maybe profoundly disagreeing, with the concept that just because the political branches by majority vote and they are elected by a majority, just because the majoritarian favor of the majority gives a bias to constitutionality. I would point out that the Constitution itself was anti-majoritarian. The Constitution itself had little faith in majority rule, in pure democracy, and much of the constitutional principles were drafted to protect minorities, that is were anti-majoritarian. And the Supreme Court, to the extent that they are striking down the will of the majority, they are doing, they are exercising the same bias that’s in the Constitution itself. So we should have a governmental principle that is at least skeptical of majority rule and certainly shouldn’t give the majority rule the benefit of the doubt. But that’s just, of course, my opinion.
Now, what’s interesting, Keith, also is when there is a public debate about the Supreme Court, when there are pollsters out there, “Do you agree with the Supreme Court?” such as Citizens United—90% of the people disagree that corporations have no rights, they don’t have the free speech rights, etc. Or whether Obamacare was constitutional—we still don’t know that for sure because of the strange decisions from the Supreme Court. But when we have a public debate about a Supreme Court decision, Citizens United always comes to mind, the debate is never on the basis of what does the Constitution tell us. It’s on the basis of pure policy. And I wince because we should not be debating policy when discussing a Supreme Court decision. We should only be debating the law because that is the only issue.
Keith Whittington: Yeah, I find it distressing the extent to which we tend to frame court decisions in terms of policies and whether or not the general public likes them. We do, I think, wind up doing these kinds of public opinion polls in which we ask people whether they approve of the court’s decision, when really what we’re doing is effectively asking them whether they like the outcome or not. And that’s not the court’s job. The court’s job is not to do whatever it is the majority of the people want or to give them whatever policies they might happen to like. The court’s job is try to defend the Constitution. And as you say, the Constitution includes all kinds of restrictions on what political majorities can do. And we would expect the court to step in and defend those limits even when they’re unpopular.
And in part of some of my other work, I emphasize and defend a theory of constitutional originalism as how we ought to be trying to interpret the Constitution. We should be trying to recover what the Constitution meant when it was originally adopted and try to implement that as best we can. That’s a hard task, one that the general public doesn’t always understand and isn’t going to always understand the logic of what the court is doing. But if the court’s doing its job, it’s sometimes going to be making decisions that are unpopular. And the mere fact a decision’s unpopular doesn’t tell us very much about whether or not the court’s done a good job or a bad job.
Historical Eras of Judicial Activity [11:31]
Bob Zadek: What strikes me as being rather strange and somewhat disappointing in discussion when the public discusses, when the evening news has commentary on Supreme Court decisions that are controversial, what distresses me is when the discussion is never on the law, it’s always on the policy. And when the Supreme Court strikes down a statute as being unconstitutional, the public, the portion of the public who disagrees, always disagrees and criticizes the Supreme Court. “Why did they strike down the law?” But never, ever have I seen in public discussion any criticism of Congress. “Hey Congress, why did you pass a clearly unconstitutional law and waste our time?” And the focus is never seems to be on Congress, perhaps because Congress is hired, if you will, by a majority and the Supreme Court is not. But I’ve never seen a discussion of a Supreme Court decision in the public arena where the criticism is directed at Congress at not doing their job, as you pointed out earlier, not respecting the Constitution enough to avoid passing unconstitutional laws. Thoughts?
Keith Whittington: Yeah, unfortunately I think that is where our political culture is, and it is a lesson that politicians have very much taken to heart. I think in the 19th century, you did see politicians worry more, in part because they thought it was their own responsibility to worry about what the Constitution required. But there was also more of a sense that it was in their political interest to care and pay attention to what the Constitution meant and try to defend it.
I think, though, across American history, politicians have learned that the voters themselves don’t care that much about the Constitution itself. The voters care about policies and whether or not they’re getting the kind of policies that they want. But that no congressman is going to get thrown out of office for having voted for a statute that the Supreme Court later says is unconstitutional. There’s no political price to be paid for making those kinds of decisions. And if there’s no political price to be paid, then they have no incentive to care about the Constitution or stay within their constitutional bounds. They in effect then freely think they ought to vote for whatever will make their constituents happy, and complying with the Constitution is not going to be part of that.
And presidents have taken the same lesson away from the voters. There was a time when presidents thought they ought to veto legislation that was unconstitutional, and presidents learned that it was not in their political interest to do that either, that no voter was going to reelect a president because he vetoed legislation that he thought was unconstitutional. And so presidents increasingly stopped doing that. They hardly ever veto legislation because they think it’s unconstitutional. They’re much more likely to issue a signing statement that says, “Even though I’m signing this into law, I think it has some constitutional problems and I really hope the court takes a serious look at this down the road.” And presidents, like Congress members, have learned that that’s the politically popular thing to do and the thing that will advance their own career. And so we put a lot of pressure then on the court to be cleaning up constitutional mistakes that elected politicians are not going to try to clean up themselves. It’s not the way the Founders would have hoped that the constitutional system would work. I think it makes the constitutional system much more fragile than it otherwise should be, and the result is you’re going to get a lot of laws passed that in fact violate the Constitution.
Bob Zadek: Keith, in your book, as we start to painfully run out of time on the show, in your book you broken down the study of the Constitution—sorry, of the Supreme Court—into eras, perhaps from the founding era through the Civil War, from the Civil War through the Progressive Era, the turn of the 20th century, from the Progressive Era to the New Deal, and from the New Deal to the present. Did you see dramatic differences in those era in terms of the striking down, the activity of the Supreme Court in striking down laws, and did you see a reason for that that would give you an ability to look into the future and see what’s likely in store for us in the next era?
Keith Whittington: Yeah, the court has become more active in striking down laws over time. So I think it was restricting the congressional acts on the basis of constitutional concerns from the very beginning. I think it was doing it a lot more often in the early decades of American history than we often give the court credit for. But there’s no question that it has stepped up how often it has done it. It took a big step up and started doing more of that in the years after the Civil War and Reconstruction. And it did it again in the 20th century in the years after, really around World War I, the court started striking down more laws on a more consistent basis than it had before.
And presumably that will continue, although the Roberts Court notably has struck down a lot fewer laws than the court has in a very long time. So the Roberts Court is less likely to strike down laws and is less aggressive in striking down laws than has been true for the Supreme Court for decades. So it’s a little weird that we’re actually in the midst of a political debate in which there’s a lot of focus on the idea that the Supreme Court is actively and aggressively striking down laws when really this court has been less active in doing that than the court has been through much of the 20th century.
But it will probably continue. But the other thing that’s notable about that shift is even though the court became more active over time in striking down laws, it wasn’t keeping up. Congress was passing laws at a much faster rate than the court was reviewing them. And so even though the court has struck down laws in more cases in the 20th century than it did in the 19th century, it was reviewing an even smaller percentage of the statutes that Congress was passing and the statutory provisions that Congress was passing than it had in the 19th century. Congress has been very busy, and if the court was really reviewing that legislation as actively as it once did, it would be striking down and upholding even more laws than it does now.
Bob Zadek: The trouble is, of course, it’s a ratchet. It only goes one way. The more the court finds statutes constitutional, the grounds for unconstitutionality decrease, which means more and more government. Not a pretty picture for us libertarians.
So Keith, as we wind down, you see that the trend is likely to continue, although it’s certainly very personal—it depends upon who gets appointed. But we are more likely to see less striking down of laws as unconstitutional, which means Congress will feel its oats more and more and feel more and more encouraged that they are not encumbered by the Constitution, which is not a pretty picture.
So Keith, I want to thank you so much for your book and for giving us an hour of your time. Keith’s book Repugnant Laws is a must-read for lawyers and for layfolk who want to understand how our government truly operates. Keith, thank you so much for your time and good luck with your book.
Keith Whittington: Thank you, appreciate it.