Reviewing Judicial Review



“A Law repugnant to the Constitution is void.”

– Chief Justice John Marshall, Marbury v. Madison

Constitution geeks, rejoice. The book you’ve been waiting for has arrived. Repugnant Laws by Keith Whittington (William Nelson Cromwell Professor of Politics at Princeton) takes readers under the hood of our system of checks and balances – examining “Judicial Review of Acts of Congress from the Founding to the Present.”

Whittington, who writes for my favorite legal blog the Volokh Conspiracy, joins me live. He has written a great deal about impeachment lately, but his real constitutional expertise is the main check that the judiciary exercises over the legislature – its ability to overturn state and federal laws which it deems unconstitutional.

The power of judicial review was first discovered by the Supreme Court in the infamous case of Marbury v. Madison, in which Chief Justice John Marshall opined that “A Law repugnant to the Constitution is void.” (Who else but the courts could decide when a law enacted by Congress is repugnant to the Constitution?)

Since then, the makeup of the courts has influenced the direction of policy in subtle but powerful ways. Whittington’s book analyzes thousands of cases in which the Supreme Court either upheld or overturned federal laws. He applies the precision of a scientist (a political scientist, that is) to questions of politicization and examines whether an activist judiciary is antidemocratic.

RealClear Politics reports that President Trump is “Remaking the Federal Judiciary at a Historic Rate”. According to Whittington’s data, this will influence political outcomes for decades to come. But while judicial appointees may tend to side with the dominant political coalitions, he notes that they do not make their decisions along strict ideological lines.

I have previously explored whether the courts should exercise restraint in allowing lawmakers to craft a wide range of legislation (see Overruling Government Overreach: Damon Root on the Libertarian Legal Movement).

I have also argued in favor of a more activist judiciary, which defends individual rights from being overridden by majority rule, and believe that the courts are the last bulwark against excessive democracy. However, everyone seems to be in favor of judicial activism when it favors his or her politics. That explains why restraint and “minimalism” are in vogue among liberals when the conservatives are in power, and vice versa.

Find out why Randy Barnett says Repugnant Laws is “Simply a must-read for any serious student of our Constitution and how it actually works.”

Listen to hear the condensed version of Whittington’s monumental findings, or read the transcript here.