Reviewing Judicial Review with Keith Whittington
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, joined me live this Sunday. 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.
Bob Zadek: 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 so much I almost couldn’t sleep in anticipation of this morning show. Keith is the William Nelson Cromwell Professor of Politics at Princeton University. He is a frequently published author. Recently he has written Speak Freely: Universities Must Defend Free Speech And Why Must They., and has just published a book with the title Repugnant Laws, where Keith examines in incredible detail the history of the Supreme Court upholding or striking down laws — enacted by Congress and signed by the President — as being unconstitutional.
When you think about that, it is one of the most interesting and unique things among western democracies, where you have a totally independent judiciary, with nine unelected full life term judges who need not be attorneys but almost always have been, judges sitting on the Supreme court which can 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, a hundred 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 is about as undemocratic as the government can be. Is that healthy for democracy?
What has been the history of so-called “judicial review” in this country? There is not a subject more profound that goes to the very heart of the operation of our government than that subject. Keith is the perfect individual author and scholar to explain this to us.
Keith, welcome to the show this morning.
Keith Whittington: Thanks for having me.
Judicial Review: A History
Bob Zadek: Your book Repugnant Laws discusses the topic of what has come to be called judicial review. Please explain for our listeners what judicial review is and how it fits into the scheme of our government.
Keith Whittington: Judicial review is the practice of the courts challenging a law as being contrary to the requirements of the Constitution. The court claims it has the authority to determine whether those laws are actually consistent with the Constitution and if they are not, 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. Over time it became a more prominent feature of the constitutional system and 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, coined the term judicial review.
Bob Zadek: Judicial review is a profound power. It can undo the work of elected officials. When Americans 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. The ultimate determination of whether we shall be governed by a federal law is done by a group of people who are unelected. So what does that do to the concept that we are with democracy, when ultimately the laws have to pass through the filter and get the approval of the only unelected branch of government? As you have pointed out, it’s a concept that the court created for itself. Is that a fair statement?
Keith Whittington: I think it probably goes too far. I mean certainly there was a narrative that emerged 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 of the judges just made up out of thin air and grabbed hold of and asserted. They emphasize that point because they thought it was illegitimate and therefore courts should stop exercising this kind of power. 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.
It’s also true that I think this was widely anticipated by many of those drafting the Constitution — both the federal Constitution in 1787, but also state constitutions before that — that the court would exercise some kind of power like this. There are 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.
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 clearer as to where this power comes from and clearer what exactly the practice was going to look like.
Three “Co-equal” Branches?
Bob Zadek: 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. Let’s discuss “co-equal” for a moment. How can that concept be true if one branch can decide that a statute which a majority of Congress supported and the President signed does not pass the constitutional test?
Keith Whittington: It certainly raises questions and it’s been a controversial power for the court to exercise over time for exactly this kind of reason. The question is whether or not you are setting up the courts as being above the other branches of the government, and maybe even above the people themselves. There have been some classic books written with titles like Government by Judiciary, complaining about exactly this kind of claim that we have set up the government as not a democracy, but ultimately a government that’s run by the courts, since 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 settled on the language of judicial review really emphasize that kind of claim. Some people were suggesting we ought to call this power of judicial veto, or judicial modification of laws, or judicial supremacy. All that sort of tends to emphasize the ways in which the court was exercising a legislative power — repealing laws that Congress had adopted. I think the courts would emphasize that they aren’t repealing laws — they’re just refusing to apply them and only in a very narrow circumstance of when they conflict with the Constitution itself.
Then they claim further that the Constitution itself is adopted by the people and as a consequence is the most fundamental law. So the people ultimately have power 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. Certainly it 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.
What if There Was No Such Thing as Judicial Review?
Bob Zadek: Alexander Hamilton observed that the court is the weakest branch of government because it has no army, no police force to enforce its rulings, no power of the purse, and can only spend money that has been given to it by the other branches of government. So in some ways the court is the weakest branch, not the most powerful branch. But it is an interesting tension.
Now, Keith, before we get into the book and the methodology of your book — because the methodology is so interesting — if the concept of judicial review never was created as a judicial concept, how did the founders imagine the system would work? We have a Constitution which primarily limits 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 our country would have operated? What would have happened to the principles of our founding documents?
Keith Whittington: That’s a good question. I am skeptical that we would have adhered to them as closely as we have. There are certainly arguments that we haven’t adhered all that closely to the Constitution over time, but I think there are certainly questions about whether we would have even done that much if the courts weren’t there to remind us about our constitutional obligations and try to pull us back. I think the framers tended to not think courts were going to be particularly important players in this regard even if they thought the courts might sometimes have to step in in this way.
They were placing their bets on the importance of things like bicameralism, the presidential veto, the ways in which legislators are elected, etc. as all being ways in which people in government would be more likely to adhere to the Constitution and be less likely to violate the Constitution.
They really counted on the idea that Congress would take their constitutional responsibilities seriously, that they’d be debating and not constitutional issues and what their constitutional limits are — that they would respect those limits voluntarily — but when they didn’t, the presidential veto would help keep them in check. Ultimately if 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.
Judicial Review: The Bottom-Line
Bob Zadek: You have just uttered the first understatement of the hour by saying “pessimistic.” Of course it would be pessimistic to expect that people who aspire to be legislators or in the executive branch — who are motivated by a certain mentality, a certain worldview — would voluntarily control that motivation and urge to get reelected. It would be absurdly aspirational.
Tell us about your book. You set out 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? Give us some idea of the magnitude of the process that you went through, just to show how significant your scholarship has been. Finally, what were the bottom line conclusions statistically about what you found?
Keith Whittington: I’ve long been interested in the way the court exercises judicial review, how significant it is, what role it plays within the constitutional system, etc.
One really important empirical question is how significant the court has actually been within the system and keeping other government officials in mind. 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, to be so resistant to what politicians are doing.
So I thought I would embark on this project of trying to look at in this very specific context of how the U.S. Supreme Court evaluated the constitutionality of federal laws over time and how much they were pushing back on Congress across its history. I initially thought that would go pretty quickly and it’d be a relatively small book, but the more I sat down and started to work on it, I realized that at best I only knew half the story. I had 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 or even identified the cases in which the court had upheld laws.
Then I was also somewhat skeptical that we have 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, assembled a list of cases in which he thought the court had struck down laws as being unconstitutional. He did this at the request of Congress in the early part of the 20th century. That’s been our standard list that we’ve used 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 worrying that that list was incomplete so I went back to the starting point and started reading cases the court had decided, and I 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.
I read a little over 10,000 cases trying to find the right ones and settled on a list which I think is really comprehensive — over 1,300 cases in which the court has substantively evaluated the constitutionality of a federal law on 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 actual Congress and says that Congress is perfectly fine within the bounds of the Constitution.
I think as a consequence, the court has 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, creative, and even unprecedented relative to what Congress had done before. 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.
Bob Zadek: The statistics have to have some asterisks attached to them. For example, isn’t it true that the court must take certain cases? There’s mandatory jurisdiction. And in other cases, four votes of justices can have the court accept as for cert to decide cases. So the court has some discretion over what cases they will accept. Sometimes they have no discretion because they have mandatory jurisdiction. As to the cases they decide to accept, they would only accept a case if they seem 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: It is a bit of a puzzle as to why the court has spent so much time upholding laws. Through much of the court’s history they 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. 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. 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 would 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.
In the early 20th century, the court mostly got control over its own docket. 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. Very recently the court has done a lot less of that. So the Roberts court actually does not pick for 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.
Part of the reason is to send a message to the lower courts to signal where the constitutional boundaries are. Sometimes the court is sending signals to Congress itself and to outside political actors endorsing certain kinds of constitutional views and reassuring people that Congress actually does have certain constitutional powers and can make certain kinds of legislation. But it is a little puzzling why the court spends as much time as it has across its history upholding laws because you would think most naturally that it would be most interested in taking cases in which they think Congress has exceeded its powers and as a consequence needs to have this law narrowed or even struck down.
Political Influences in Supreme Court Judgments
Bob Zadek: Now I will confess that I suffer from an intellectual infirmity. I see the world very comfortably as black and white. There are no shades of gray. And therefore one of the lessons of your book is that the Supreme Court doesn’t quite make a decision simply by doing some detailed analysis of the Constitution and deciding in a purely jurist way. They are influenced by politics, by institutional health, i.e., preserving the respect of the Supreme Court, etc. Comment on how much of the decision you saw was a product of something other than a pure cold analysis of constitutional law, and how much has it been influenced by those outside forces.
Keith Whittington: The court is shaped by politics. How the justices operate is shaped by politics. The really interesting questions are exactly how and whether or not it’s avoidable or even disagreeable depending on how they do it. One kind of politics I think the justice do pay attention to and matters at some points more than others is fundamental institutional politics. The court has felt very threatened at times and wasn’t confident about the future of its own institution and they questioned how much the court should annoy politicians and get in their way when those politicians might push back rather hard. Hamilton’s warning that the court is the least dangerous branch does emphasize this idea that the court is weak and politically vulnerable.
If politicians really want to weaken the court, they could do 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 and 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 the things are wrong. I think there’s also a kind of politics which we tend to focus on much more and would be even more troubling if it influenced the court, and I think actually it is pretty rare on the court.
We might think of politics in a very ordinary partisan sense — that as President Trump sometimes likes to say, “there are Republican judges and Democratic judges,” — and they are just acting like Republicans and Democrats and advancing policies of that sort and rejecting policies that are contrary to those.
It’s relatively rare that the justices simply act as pure partisans — as if they are acting by party labels. But what does happen much more commonly, and it’s 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. 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 fight about what the Constitution requires.
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. That’s particularly prominent in a set of cases that we sort of would traditionally think of as very politically controversial cases that we care a lot about in the larger political arena — abortion, affirmative action, the affordable care act, and the like. 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.
Bob Zadek: There are also many cases the court decides that politicians don’t break down in very natural ways. The parties are not organized in particular ways about those kinds of cases. The justices tend to agree among themselves to a much greater degree about the right outcome on those cases. We might think of those cases in which the justices are behaving in their most lawyerly-like fashion. There are lots of cases like that where the Congress has been really sloppy about what they’re doing or where Congress is just ignoring a set of constitutional rules or commitments or values which from the justice perspective is sort of obvious and that the Congress ought to adhere to. One virtue of having an independent court is that the court is willing to clean those things up.
Keith Whittington: A tremendous number of cases in which the court has actually struck down laws or narrowed them on constitutional ground are not that politically controversial. They don’t make the front page of the New York Times. They are cases in which the justices themselves tend to actually be in a fair amount of agreement about how they ought to be resolved. They are 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. We tend not to focus very much on because those are lower profile cases but they are hard to characterize as political in a normal sense of the term. Maybe they are the cases where we think the court is being most valuable.
Judicial Deference to Congressional Will
Bob Zadek: There seems to be a bias that when the Supreme Court is deciding the constitutionality of acts of Congress, that they have this default deference to find the act constitutional because otherwise they are overturning the majority will. Does that bias exist? Is that a healthy starting point or should they start from a more neutral standpoint of not giving the benefit of the doubt to acts of Congress in so far as constitutionality is concerned?
Keith Whittington: That tends to be a bias of the justices and how the court operates. There certainly are 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 not giving that much presumption to Congress. The court is pretty skeptical of Congress. But certainly the court often gives lip service to the idea that Congress ought to get the benefit of the doubt.
I think it’s a good question as to how much of benefit of the doubt 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, so the court ought to be somewhat cautious about rushing in to strike down laws that Congress has adopted. So you do have these kinds of contexts in which we just disagree about where the constitutional limits are, and it is 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 were talking about it and trying to understand what it required. In the 20th century Congress has become much less interested in worrying about what the Constitution means.
They are much more willing to say, in fact, you see politicians say it all through the course of the 20th century, “Don’t worry about the Constitution. The courts will clean it up if we get it wrong. That’s not our job.” It’s hard to justify the court being very deferential to Congress if that is what they are doing.
Bob Zadek: I find myself disagreeing with the concept that just because the political branches are democratically elected they should have a bias to constitutionality. I would point out that the Constitution itself was anti majoritarian. The Constitution itself had little faith in majority rule and in pure democracy and much of the constitutional principles were drafted to protect minorities. The Supreme Court, to the extent that they are striking down the will of the majority, are exercising the same bias that is in the Constitution itself. 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.
What’s interesting is that when there is a public debate about the Supreme Court, the debate is never on the basis of what the Constitution tells us. It’s on the basis of pure policy. I wince because we should not debate policy when discussing a Supreme Court decision. We should only be debating the law because that is the only issue.
Keith Whittington: It is distressing the extent to which we tend to frame court decisions in terms of policies and whether the general public likes them. We wind up doing these 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 liked the outcome or not. That’s not the court’s job. Their job is to interpret the law and defend the Constitution.
I empathize and defend the 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 and one that the general public doesn’t always understand and isn’t going to always understand the logic of what the court is doing.
Bob Zadek: What strikes me as being rather strange and somewhat disappointing in the public discussion is that it’s never on the law. It’s always on the policy. When the Supreme court strikes down a statute as being unconstitutional, the portion of the public who disagrees always 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? The focus never seems to be on Congress, perhaps because Congress is hired 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 for not doing their job and not respecting the Constitution enough.
Keith Whittington: Unfortunately that is where our political culture is, and it’s a lesson 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’s 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. 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 kinds of policies that they want. 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, and they have no incentive to care about the Constitution or stay within their constitutional bounds. There was a time when presidents thought they ought to veto legislation that was unconstitutional. Presidents learned that it was not in their political interest to do that either.
Presidents 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 in the law, I think it has some constitutional problems, and I really hope the court takes a serious look at this down the road.”
We put a lot of pressure on the court to clean up constitutional messes that elected politicians are not going to try to clean up themselves. It’s not the way the framers would have hoped that the constitutional system would work. It makes the constitutional system much more fragile that it otherwise should be. And the result is you’re going to get a lot of laws passed that violate the Constitution.
The Supreme Court Eras: What’s on the Horizon?
Bob Zadek: You break down the Supreme Court into eras. From the Founding Era to the Civil War to the Progressive Era, to the New Deal, and from the New Deal to the present. Do you see dramatic differences between these eras as far as the activity of the court to strike down laws? Did you see anything 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: The court has become more active in striking down laws over time. So it was restricting congressional acts on the basis of constitutional concerns from the very beginning. It was doing it a lot more often in the early decades of American history than we often give the court credit for. There’s no question that it has started doing more of that in the years after the Civil War and reconstruction, and again in the 20th century around WWI. They struck down more laws on a consistent basis than it had before. Presumably that will continue, although the Roberts court has notably struck down a lot fewer laws than the court has in a very long time.
So it’s a little weird that we’re actually in the midst of a political debate in which there is 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 period is that even though the court became more active over time and striking down laws, it wasn’t keeping up. Congress was passing laws at a much faster rate than the court was reviewing them. If the Court was 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 that it is a ratchet that only goes one way. The more the court finds statutes constitutional, the grounds for unconstitutionality decrease, which means more and more government, which is 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 on 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.
- Keith’s writings for the Volokh Conspiracy– Reason.com
- Keith’s Writings for the Lawfare Blog
- Our Documents — Marbury v. Madison (1803) — the first instance in which the Court struck down a federal statute.
- Demystifying the Supreme Court, with David A. Kaplan
- Overruling Government Overreach: Damon Root on the Libertarian Legal Movement
- How to Create a Legitimacy Crisis, with Ilya Somin
- Judge Gorsuch on the Hot Seat with Ilya Shapiro
- Professor Bernstein vs. President Obama: Battle of the Con Law Professors
- Ilya Shapiro on the Supreme Court in the Balance
- Does the Constitution Still Matter? Evan Bernick from the IJ