Posted: September 15, 2008
as the science of politics, said by America's founders to have been greatly improved since antiquity, further improved since they wrote the Constitution? In an important new work, Keith Whittington puts this question to the test by examining the evolution of the judiciary's role in American government. The William Nelson Cromwell Professor of Politics at Princeton University, Whittington emerged dramatically into the scholarly world with two substantial books published simultaneously in 1999, Constitutional Interpretation, a defense of originalism, and Constitutional Construction, a study of how political actors outside the courts help formulate the Constitution's meaning. Taken together, the books presented an ingenious argument: originalism is the soundest method of constitutional interpretation by judges in legal cases because it respects popular ratification of the Constitution; but development and change are inevitable in situations of constitutional construction because these involve political struggles to complete, and inhabit, what the Constitution merely framed. Whether or not the distinction between interpretation and construction was understood in this way by the founders—"construction" in their time was often a noun form of "construe," a synonym for "interpret"—the distinction served usefully to balance continuity and change in Whittington's analysis. And both originalist constitutional interpretation and constructive constitutional development vindicate the sovereignty of the people, who on the one hand wrote the Constitution's text and on the other participate in the elaboration of constitutional practice and form.
Whittington's latest book develops the political science of his earlier works, but disappoints their political promise. InConstitutional Interpretation, Whittington wrote of "the faulty assumption of judicial supremacy," but now he has made his peace with the claim that, in the American system of government, judges are the final authority on the Constitution's interpretation. He holds elected politicians themselves responsible for not defending more vigorously the chief alternative to judicial supremacy, namely "departmentalism," according to which each branch of the government has final say over constitutional questions that arise within its purview. Departmentalism has a claim to be the original understanding; it was invented by Thomas Jefferson, employed by Andrew Jackson, and perfected by Abraham Lincoln. Judicial supremacy was first proposed in the speeches of their respective opponents: the Federalist Party, Daniel Webster, and Stephen Douglas. We are familiar with late 20th-century assertions by the Supreme Court that it owns "the authority to decide...constitutional cases and speak before all others for their constitutional ideals" (Planned Parenthood v. Casey, 1992), but in Political Foundations of Judicial Supremacy Whittington ably demonstrates that "even before the Supreme Court claimed that it was the ultimate interpreter of the Constitution, political leaders had already asserted the same thing."
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What the author tries to show—using his earlier conceptual framework almost against itself—is the constitutional construction of judicial supremacy, how the originally unsettled question of authoritative constitutional interpretation was politically contested and eventually—allegedly—determined. In order to explain both sides of this contest—why so many politicians have endorsed judicial supremacy and why our greatest or most influential presidents have rejected it—Whittington adapts Yale political scientist Stephen Skowronek's framework of American political development from his influential 1993 book, The Politics Presidents Make. Whittington's focus on the presidency to explain judicial supremacy is surprising at first, but truly insightful, for it is only the president besides the Court who can actually speak for the American people as a whole.
Skowronek's framework is a sort of successor to the more familiar theory of critical elections and realignment, sketched by V.O. Key and elaborated by Walter Dean Burnham nearly half a century ago. While Key and Burnham stressed generational decision among the electorate, Skowronek focuses on presidential leadership and the succession of political "regimes" that results from transformative leaders. In Whittington's adaptation, presidents come in three types: reconstructive, affiliated, and preemptive. The first are the familiar greats—Jefferson, Jackson, Lincoln, and Franklin Roosevelt—who changed the terms of political debate, modified the structure of the state and its activities, and, yes, realigned the people's partisan identification. Affiliated presidents are members of the same political party who further elaborated or articulated the reconstructors' principles and policies, even at some distance in time, e.g., James Monroe for Jefferson, Theodore Roosevelt for Lincoln, and Lyndon Johnson for FDR. Preemptive presidencies interrupt the reconstructive party's hold on the office without fundamentally challenging its positions, hence the Whig generals during the Jacksonian ascendancy, Grover Cleveland during the Republican era, and Dwight Eisenhower in the wake of the New Deal. All in all, it is an elegant model for observing patterns in American political history, reproducing for politics the pattern Thomas Kuhn devised in The Structure of Scientific Revolutions (1962) to describe the history of science: stretches of normality operating within an established paradigm, punctuated by revolutionary moments when paradigms shift.
Whittington brightens the dark moments in Skowronek's model—for example, omitting the category of "disjunctive" presidencies, failed attempts at affiliation—as he refines it to explain the development of judicial supremacy. He erases Skowronek's doubts about categorizing Ronald Reagan as a reconstructive president and thus denotes the sequence from Reagan to George Bush to Bill Clinton to George W. Bush as reconstructive to affiliated to preemptive to affiliated—a typical pattern. He focuses the notion of political regime by emphasizing its constitutional dimension: reconstructive presidents establish their authority not by re-creating political meaning generally, but specifically by reorienting the Constitution's interpretation. With ample illustrations drawn from his knowledge of American political history, Whittington shows how affiliated and preemptive presidents both have found it in their interest to deflect constitutional questions to the courts, which, as yet another Yale political scientist, Robert Dahl, has demonstrated, soon enough come to mirror the thinking of the dominant electoral coalition or, in the new parlance, the dominant regime.
Affiliated presidents, finding the courts in friendly hands and working to make them friendlier, happily leave controversial issues to their judicial compatriots, allowing members of their coalitions to avoid blame for unpopular court decisions and even to take popular positions denouncing the courts without having to back an alternative policy with political consequences of its own. The incentives for preemptive presidents to support judicial supremacy are more complex. They are aware of their majority coalition's fragility, which usually does not give them control over both branches of Congress. When preemptive presidents lack the Senate, of course, they are constrained in whom they can appoint to the courts, and they themselves would probably not have been elected had they not conformed in their thinking to the constitutional orientation of their age (witness Cleveland, who supported hard money and laissez-faire, or Eisenhower, who accepted expansive federal power). In their weakness, preemptive presidents are not apt to promote legislation the courts will strike down anyway, and because, as Whittington points out, "the law is intertemporal and partially incongruent with the current regime...it may provide shelter from the prevailing political winds" to the president's advantage, especially by supporting him against a hostile Congress.
In short, only reconstructive presidents have an incentive to challenge judicial supremacy, whereas the others stand to gain by endorsing it. As reconstructive presidencies have grown even rarer in the 20th century than they were in the 19th, support for judicial supremacy has grown more common, making it now so clearly the dominant account of our constitutionalism that the Supreme Court itself is not ashamed to announce it. While Skowronek saw the eclipse of reconstruction as a kind of tragedy, Whittington's political lesson is to stop fretting and accept the inevitable. Besides, from Woodrow Wilson's appointment of Louis Brandeis through Richard Nixon's of William Rehnquist, preemptive presidents have learned to express their opposition to the dominant constitutional regime by finding justices able to dissent and thus lay the groundwork for doctrinal change, from within the Supreme Court, sometime in the future. Usefully, Whittington suggests that a president or a party inclined to defy the courts had better have the imagination and authority to be reconstructive. Departmentalism is not completely buried by his account, but it is reserved to the strong—and to those moments when a democratic people allows such strength.
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But let me propose three ways in which Whittington's acceptance of judicial supremacy seems premature. First, the book overlooks the distinctive function of courts in a common-law system, which even the U.S. Supreme Court does not escape—i.e., doing justice in particular cases according to law. To be sure, Whittington is aware that courts are different from other branches; he dismisses the work of the judicial behaviorists as mistakenly assuming judges are mere policymakers like all other government officials, and he staunchly holds that law persists across time. More attention is due to the fact that, even today, the courts' announcement of constitutional principles comes in particular cases known by the actual parties' names. Legislated changes in jurisdictional statutes—enabling class action suits, declaratory judgments, the combination of equity and law, appellate courts' control of their dockets, and other innovations—have made it easier to bring abstract questions to court, with concrete cases invented only as their vehicles. Still, the basic form of judging remains intact: courts are charged with settling particular disputes or righting particular wrongs, and they address general legal questions—including constitutional questions—only incidentally as needed to do justice. The finality of the Supreme Court's judgment is precisely in the doctrine of res judicata, putting a particular case to rest. On the abstract questions, the judges cannot even bind themselves.
Second, the Skowronek-Whittington model of American political and constitutional history is attractive for being at once cyclical and linear, but as the punctuated heartbeats of reconstruction grow farther apart and less pronounced, one wonders whether the linear movement toward judicial supremacy might not cancel out the possibility of presidentially-led constitutional course-correction. Perhaps this is Whittington's point—but if so, then he needs to say more about the Progressive Movement's reliance on legal realism and public administration to transform what Skowronek elsewhere calls the old regime of courts and parties into the "new American state." Both Cleveland and Eisenhower may have appointed chief justices that presided over eras of judicial activism in the spirit of the opposite party's dominant coalition—but can the Burger and even Rehnquist Courts' continued activism in a liberal direction on social issues be explained by the developmental model? Does federal dominance in the law since the New Deal—particularly in constitutional law as a result of the doctrine of incorporation of the Bill of Rights—change the balance of constitutionalism? Whittington addresses both these questions in useful ways, but in the end one has the sense that deeper and more questionable changes have taken place than his model is prepared to consider.
Finally, what are the consequences for constitutional democracy if the polity has finally accepted what in its earlier years had always been the minority or even oligarchic position favoring judicial supremacy in the Constitution's interpretation? Reconstructive presidencies remain a theoretical possibility in Whittington's account, but by definition they are unpredictable, depending as they do on leaders who "shatter" and "re-create" the political order. Leaving aside the question of whether conservatives would describe Lincoln's or Reagan's actions this way—instead of as a return to first principles or a restoration of natural rights—one wonders whether, seen from either side of the political spectrum, a great president still can challenge the Court in the name of the Constitution if ordinary citizens are not in the habit of seeing the law as their own, rather than as the distant decree of an authority in which they have no share or to which they have no access. And one wonders at a political science that understands the rhythms of political change but forgets what citizens need to know in the pursuit of the public good.
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For Correspondence on this review, click here.