Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University; Marc O. DeGirolami, Cary Fields Professor of Law and Co-Director, Center for Law and Religion, St. John’s University School of Law; Robert F. Nagel, Ira C. Rothgerber, Jr. Chair Emeritus in Constitutional Law, University of Colorado
Moderated by Matthew J. Franck, Associate Director, James Madison Program in American Ideals and Institutions and Lecturer in Politics, Princeton University
When the Supreme Court strikes down favored legislation, politicians cry judicial activism. When the law is one politicians oppose, the court is heroically righting a wrong. In our polarized moment of partisan fervor, the Supreme Court’s routine work of judicial review is increasingly viewed through a political lens, decried by one side or the other as judicial overreach, or “legislating from the bench.” But is this really the case? Keith E. Whittington asks in Repugnant Laws, a first-of-its-kind history of judicial review.
Professor Whittington revises the standard catalogue of cases where the court has struck down a federal statute, adding for the first time those decisions that have upheld acts of Congress against constitutional challenges. This enables him to reassess the prevalence of judicial review, and to account for how its power has evolved over time.
The court, Repugnant Laws suggests, is a political institution operating in a political environment to advance controversial principles, often with the aid of political leaders who sometimes encourage and generally tolerate the judicial nullification of federal laws because it serves their own interests to do so. Keith Whittington’s work reminds us that, for better or for worse, the court reflects the politics of its time.
In this panel, Professors Nagel and DeGirolami will offer their assessments of Professor Whittington’s thesis, and Professor Whittington will respond to their comments.
Keith E. Whittington is William Nelson Cromwell Professor of Politics in the Department of Politics at Princeton University. He is the author of Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (which won the Thomas M. Cooley Book Prize) and Speak Freely: Why Universities Must Defend Free Speech (which won the PROSE Award for best book in education and the Heterodox Academy Award for Exceptional Scholarship), as well as Constitutional Construction: Divided Powers and Constitutional Meaning, and Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review, and Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (which won the C. Herman Pritchett Award for best book in law and courts and the J. David Greenstone Award for best book in politics and history), and Judicial Review and Constitutional Politics, and American Political Thought: Readings and Materials. He is currently completing Constitutional Crises, Real and Imagined and The Idea of Democracy in America, from the American Revolution to the Gilded Age. Professor Whittington has also edited and co-authored several volumes on law and politics and on American constitutionalism, and has published widely on American constitutional theory and development, federalism, judicial politics, and the presidency. He has been a John M. Olin Foundation Faculty Fellow, American Council of Learned Societies Junior Faculty Fellow, National Center for Free Speech and Civic Engagement Fellow, a Visiting Scholar at the Social Philosophy and Policy Center, and a Visiting Professor at the University of Texas School of Law, and is a member of the American Academy of Arts and Sciences. He is editor (with Gerald Leonard) of the New Essays on American Constitutional History and editor (with Maeva Marcus, Melvin Urofsky, and Mark Tushnet) of the Cambridge Studies on the American Constitution. He blogs at the Volokh Conspiracy and can be found on Twitter at @kewhittington. Professor Whittington received his Ph.D. from Yale University.
Marc O. DeGirolami is the Cary Fields Professor of Law and Co-director of the Center for Law and Religion at St. John’s Law School. He writes about law and religion, freedom of speech, constitutional interpretation, criminal law, and tort law. His work includes The Tragedy of Religious Freedom (Harvard University Press 2013), articles in several legal journals including the Notre Dame Law Review, Washington University Law Review, Legal Theory, Stanford Law and Policy Review, and others, as well as opinion pieces in the New York Times, The New Republic, First Things, The Weekly Standard, and more. He was a visiting fellow at the James Madison Program at Princeton University in the spring of 2019 and will be a visiting professor of law at Notre Dame Law School in the spring of 2020.
Robert F. Nagel is Ira C. Rothgerber, Jr. Chair Emeritus in Constitutional Law at the University of Colorado. He served as Deputy Attorney General of the Commonwealth of Pennsylvania from 1972 to 1975 and has held visiting appointments at Cornell University, the University of Michigan, William & Mary University, Duke University, and the University of San Diego. He was the Ann and Herbert W. Vaughan Visiting Fellow in the James Madison Program in fall 2016. Professor Nagel is the author of Constitutional Cultures: The Mentality and Consequences of Judicial Review (California, 1989), Judicial Power and American Character: Censoring Ourselves in an Anxious Age (Oxford, 1994), The Implosion of American Federalism (Oxford, 2001), and Unrestrained: Judicial Excess and the Mind of the American Lawyer (Transaction, 2008). He is the editor of Intellect and Craft: The Contributions of Justice Hans Linde to American Constitutionalism (Westview, 1995). He has also published in several professional journals and general circulation periodicals and is a fellow of the American Academy of Arts & Sciences. He received his B.A. from Swarthmore College and his J.D. from Yale Law School.
Matthew J. Franck is the Associate Director of the James Madison Program in American Ideals and Institutions, and Lecturer in Politics, at Princeton University. He is also a Senior Fellow of the Witherspoon Institute in Princeton, where he served as Director of the William E. and Carol G. Simon Center on Religion and the Constitution from 2010 to 2018, and Professor Emeritus of Political Science at Radford University in Virginia, where he taught constitutional law, American politics, and political philosophy from 1989 to 2010, and was Chairman of the Department of Political Science from 1995 to 2010. He has taught at Marquette University and Southern Illinois University, and was a Fulbright Professor of American Studies at the Graduate School of International Studies, Yonsei University, Seoul, Korea, in 1998, and a Visiting Fellow in the James Madison Program at Princeton, in 2008-09. He is the author, editor of, or contributor to several books on religious freedom, constitutional law, the Supreme Court, and American politics, and has published essays and reviews in numerous academic journals, including American Political Thought and the Review of Politics, as well as many general-interest articles and commentaries in newspapers, magazines, and online, including the Washington Post, First Things, National Review, The New Atlantis, National Affairs, The Weekly Standard, the Claremont Review of Books, Touchstone, and Public Discourse, the daily online journal of the Witherspoon Institute, where he is a contributing editor. Dr. Franck earned his B.A. in political science from Virginia Wesleyan College, and his M.A. and Ph.D. in political science from Northern Illinois University.
The Bouton Law Lecture Fund