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Political Foundations of Judicial Supremacy

Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History

Keith E. Whittington
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    Political Foundations of Judicial Supremacy
    Book Description:

    Should the Supreme Court have the last word when it comes to interpreting the Constitution? The justices on the Supreme Court certainly seem to think so--and their critics say that this position threatens democracy. But Keith Whittington argues that the Court's justices have not simply seized power and circumvented politics. The justices have had power thrust upon them--by politicians, for the benefit of politicians. In this sweeping political history of judicial supremacy in America, Whittington shows that presidents and political leaders of all stripes have worked to put the Court on a pedestal and have encouraged its justices to accept the role of ultimate interpreters of the Constitution.

    Whittington examines why presidents have often found judicial supremacy to be in their best interest, why they have rarely assumed responsibility for interpreting the Constitution, and why constitutional leadership has often been passed to the courts. The unprecedented assertiveness of the Rehnquist Court in striking down acts of Congress is only the most recent example of a development that began with the founding generation itself. Presidential bids for constitutional leadership have been rare, but reflect the temporary political advantage in doing so. Far more often, presidents have cooperated in increasing the Court's power and encouraging its activism. Challenging the conventional wisdom that judges have usurped democracy, Whittington shows that judicial supremacy is the product of democratic politics.

    eISBN: 978-1-4008-2775-6
    Subjects: Law, Political Science

Table of Contents

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  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. Preface
    (pp. xi-xii)
  4. ONE The Politics of Constitutional Meaning
    (pp. 1-27)

    The Constitution is often thought to transcend our current disagreements and to have settled our fundamental political arguments. Its text embodies our most fundamental commitments, those things about which we no longer disagree, such as the content of our “self-evident” truths and “unalienable rights.” The Founding constituted order out of chaos, setting an authoritative higher law over the discord of politics. We may understand the meaning of that law differently than did those who framed it, but the Constitution remains a source of determinate answers to even our hardest political questions.

    We may come to disagree about the proper interpretation...

  5. TWO The Construction of Constitutional Regimes
    (pp. 28-81)

    In the early twentieth century, scholars and commentators began to speak of “judicial supremacy.” This is not surprising timing. It was during this period, when theLochnerCourt was in full swing, that the “higher law” features of the American constitutional system became most evident.¹ It was not until the twentieth century that a specific term, judicial review, was coined to refer to the judicial invalidation of laws on the grounds of their being contrary to the requirements of the Constitution.² The power of judicial review had long been recognized and occasionally exercised, but it was not until the turn...

  6. THREE The Reconstruction of Judicial Authority
    (pp. 82-160)

    In chapter 2 we saw the political logic of presidential claims of departmentalism. Presidents assert greater authority to interpret the Constitution, and correspondingly attempt to displace the authority of the courts to do the same, when they seek to reconstruct the inherited constitutional regime. The Supreme Court provides a useful foil to such presidents, who may well go out of their way to proclaim their coordinate interpretive authority. The political leader’s need to cut a new constitutional path puts him at odds with the institutional pretenses, as well as the substantive pronouncements, of the judges. The reconstructive leader must establish...

  7. FOUR The Judiciary in the Politics of Opposition
    (pp. 161-229)

    Not all oppositional leaders who gain power can claim the authority to reconstruct the inherited constitutional order. Their claims on political leadership are more modest and more tenuous. Unlike presidents such as Jefferson, Jackson, Lincoln, and Franklin Roosevelt, who stand in opposition to a vulnerable set of constitutional commitments ready to be toppled over, other oppositional presidents merely “preempt” a continuing partisan and political order. Such oppositional candidates may manage to win election, but they come to office with relatively little authority and few resources with which to increase their authority. The regime they oppose is still vibrant, popular, and...

  8. FIVE The Growth of Judicial Authority
    (pp. 230-284)

    In December 2000, the U.S. Supreme Court determined the presidency. The Founders could have hardly imagined such an event. When representative government was young, electoral rules were relatively few, and elections were local affairs involving a small electorate and handwritten ballots or a voice vote, there was little room for the type of election dispute that emerged in Florida in 2000. To the extent that election results were contested or not clear, legislatures were widely regarded as the appropriate institution to resolve such disputes. This understanding found its way into the constitutional text. The jealously guarded right of the British...

  9. SIX The Dynamics of Constitutional Authority
    (pp. 285-296)

    It is commonly thought that the judicial authority to say what the Constitution means is absolute, intrinsic to the constitutional design and evident from the origins of the republic. Even Ronald Dworkin, not usually prone to accepting the dead hand of the past, tells us to listen to our elders and accept judicial supremacy as fixed at the time of the founding.¹ The myth ofMarburyremains powerful. At the turn of the twentieth century, populists and progressives denouncedMarburyas a judicial coup, John Marshall’s clever stratagem by which he imposed an oligarchy of judges on the new republic....

  10. Index
    (pp. 297-303)
  11. Back Matter
    (pp. 304-307)