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

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

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

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

Synopsis

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.

Excerpt

This is a book about the authority of the judiciary, and particularly the Supreme Court, to determine the meaning of the Constitution. It seeks to understand why the judiciary has that authority and looks for the answer in the incentives facing the individuals occupying the various institutions of government. Judicial supremacy largely consists of the ability of the Supreme Court to erase the distinction between its own opinions interpret- ing the Constitution and the actual Constitution itself. The Court claims the authority not only to look into the meaning of the Constitution as a guide to the justices’ own actions, but also and more importantly to say what the Constitution means, for themselves and for everyone else. Politi- cal leaders, and most importantly presidents, have generally been willing to lend their support to those sorts of claims by the Court.

The book is secondarily about departmentalism, the Jeffersonian idea that each branch of government has an equal authority and responsibility to interpret the Constitution when performing its own duties. Conceptu- ally and historically, departmentalism has been the primary alternative to judicial supremacy. For the departmentalist, the Court’s interpretations of the Constitution might be persuasive or adequate, but the Court has no special institutional authority to say what the Constitution means. The judiciary is one institution among many that is trying to get the Constitu- tion right, but the other branches of government have no responsibility to take the Court’s reading of the Constitution as being the same as the Constitution itself. Departmentalism has enjoyed moments of prominence in American constitutional thought and practice, but most political leaders have eschewed this kind of independent responsibility for reading the Con- stitution. Presidents and political leaders have generally preferred that the Court take the responsibility for securing constitutional fidelity.

In examining the development of the judicial authority to interpret the Constitution over the course of American history—the political founda- tions of judicial supremacy—the book focuses particularly on the rela- tionship between the president and the Supreme Court and touches on a variety of broader concerns, such as the politics of the exercise of judicial review and the bases for judicial independence. It is not a history of judi- cial review or constitutional law per se. Likewise, it does not attempt to provide a comprehensive treatment of the relationship between the president and the Supreme Court. As a consequence, some notable epi- sodes of judicial-presidential interaction—such as the Supreme Court’s . . .

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