Showing papers by "Keith E. Whittington published in 2009"

Judicial Review of Congress Before the Civil War

Abstract: There is a standard story about the exercise of the power of judicial review by the U.S. Supreme Court before the Civil War. In this story, judicial review of Congress was exceptional and idiosyncratic, with Marbury and Dred Scott and little else. The standard story is wrong. This paper shows that the U.S. Supreme Court was more active in exercising the power to interpret the Constitution and limit the legislative authority of Congress than is conventionally recognized. In doing so, Court made itself available as a forum for resolving constitutional disputes and enforcing constitutional limits in low salience cases in the course of ordinary litigation, establishing judicial review of Congress as a regular if politically minor feature of the constitutional system. Uncovering this history not only corrects the historical records, but it contributes to our understanding of the politics of judicial review and the ways in which the Court often acts in partnership with political leaders.

Ideology, Partisanship, and Judicial Review of Acts of Congress, 1789-2006

Abstract: Predominant empirical theories of judicial review indicate that the Supreme Court should be more likely to strike down legislation passed by its partisan and ideological opponents and uphold against constitutional challenge legislation passed by its allies. This article introduces an original dataset composed of all cases in which the Court substantively reviewed the constitutionality of federal statutes from 1789 through 2006 in order to provide a substantial test of these expectations across the full range of American history and across the full range of judicial review. The evidence suggests that ideologically distant legislation is more likely to be facially invalidated by the Court, but is no more likely to be struck down as applied in particular cases. The Court is more likely to strike down statutes as applied when they are being implemented by ideologically distant administrations, however. Laws adopted under conditions of divided government are much more likely to be upheld than are others that come under review by the Court. Although older statutes are more vulnerable to as-applied invalidations, they are less vulnerable to facial challenges than are more recent statutes. Contrary to common expectations, controlling for ideological factors, relatively unimportant statutes are not more vulnerable to judicial invalidation than important statutes and the presence of government lawyers arguing the case does not help preserve statutes against challenge.

Judicial Checks on the President

Abstract: The judicial check on the American presidency is a supplemental tool for limiting executive power. Even so, the courts do provide a potential mechanism for constraining the executive branch. This chapter reviews both the doctrinal framework and the empirical literature regarding how courts monitor and check the executive branch.