Keith E. Whittington

Bio: Keith E. Whittington is an academic researcher from Princeton University. The author has contributed to research in topics: Supreme court & Politics. The author has an hindex of 17, co-authored 120 publications receiving 1627 citations. Previous affiliations of Keith E. Whittington include University Press of Kansas & The Catholic University of America.

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 uphold against constitutional challenge legislation passed by its partisan and ideological allies. This paper introduces an original dataset composed of all cases in which the Court substantively reviewed the constituitonality of federal statutes from 1789 through 2006. The dataset offers a new perspective on how the Court has exercised the power of judicial review across American history. The dataset is also used to test common expectations about how the Court uses the power of judicial review. We find partial support for those expectations.

Why Does the Supreme Court Uphold So Many Laws

Abstract: Scholars spend a lot of time considering the legitimacy and implications of the Supreme Court striking down federal laws by use of judicial review. Similarly, there is a large literature focusing on the Court’s power and obligation to manage the federal judiciary through its certiorari powers over its own docket and its ability to reverse lower courts. However, there is almost no work that examines the interplay of the Court’s judicial review powers and its managerial authority. Scholars have overlooked this intersection because they implicitly understand the power of judicial review and the federal hierarchy as institutions based on vetoes. On this account, the Court takes a judicial review case to veto either Congress or a lower court. This suggests that the Court should never take a case in which it affirms a lower court and upholds a federal statute. This account is (almost) entirely wrong. Using a new and comprehensive dataset, we show that throughout its history, the Court has affirmed the lower court and upheld the statute in the plurality of its judicial review decisions. The box that current theories predict should be empty is actually the fullest. This is the first article to provide an empirical look at the Supreme Court’s judicial review practices in relation to its discretionary power over its docket. It considers various possible explanations for these uphold-affirm cases like circuit splits or mandatory review and finds them wanting. The empirical results lead us to develop a theory of positive judicial review. While many scholars have pondered what the Court gains from striking down laws, we are the first that considers the normative implications of and what the Court may gain from upholding statutes. We use these empirical and theoretical efforts to examine the Roberts Court and show that it is an historical outlier. Under Roberts, the Court has dramatically reduced its judicial review docket, and it has stopped taking uphold-affirm cases entirely. We examine what may have caused the Roberts Court to be the first Court in history that conforms to theoretical expectations and use these insights to predict how the Court may behave in the future.

Some Dilemmas in Drawing the Public/Private Distinction in New Deal Era State Constitutional Law

Abstract: Like most, I long had relatively little interest in state politics as such, despite a long-standing interest in federalism-related issues. But in recent years I have been gradually drawn into state constitutionalism, thanks largely to work on a truly remarkable casebook project that incorporates statelevel discussions of constitutional principles into national-level debates and to the amazing work of a couple of graduate students with whom I had the good fortune to work. The story of American constitutional development is radically incomplete without an account of constitutionalism in the states, which supplements, extends, and contests the interpretation and construction of the U.S. Constitution. And though individual states are often idiosyncratic, there are broad currents of constitutional law, practice, and thought that flow through the states, and distinctive patterns of law and politics that a focus on the states can help illuminate. One immediate puzzle comes from a consideration of the New Deal period. Socioeconomic and political crises put established constitutional rules and norms under pressure, and the Great Depression is, as a consequence, an important period of constitutional innovation. Obviously, a

Academic Freedom and the Scope of Protections for Extramural Speech

Abstract: Advocates for faculty have long argued that "extramural speech" - off-campus speech by professors about matters of general concern - should be immune from punishment by university officials as an aspect of academic freedom. Extramural speech seems to be becoming even more prominent and more controversial in the age of social media, and so faculty members have a growing stake in its protection. But extramural speech fits uneasily alongside the other traditional components of academic freedom - the freedom to teach and to engage in scholarly inquiry. I argue that extramural speech is best understood not as an aspect of academic freedom per se, but it should nonetheless be fully protected as an aspect of campus free speech. The best rationale for protecting extramural speech is that doing so in a necessary prophylactic rule for securing the core components of academic freedom that are essential to the core mission of a university.

The collected works

Abstract: This is a review of Collected Works of John Tate. Parts I, II, edited by Barry Mazur and Jean-Pierre Serre. American Mathematical Society, Providence, Rhode Island, 2016. For several decades it has been clear to the friends and colleagues of John Tate that a “Collected Works” was merited. The award of the Abel Prize to Tate in 2010 added impetus, and finally, in Tate’s ninety-second year we have these two magnificent volumes, edited by Barry Mazur and Jean-Pierre Serre. Beyond Tate’s published articles, they include five unpublished articles and a selection of his letters, most accompanied by Tate’s comments, and a collection of photographs of Tate. For an overview of Tate’s work, the editors refer the reader to [4]. Before discussing the volumes, I describe some of Tate’s work. 1. Hecke L-series and Tate’s thesis Like many budding number theorists, Tate’s favorite theorem when young was Gauss’s law of quadratic reciprocity. When he arrived at Princeton as a graduate student in 1946, he was fortunate to find there the person, Emil Artin, who had discovered the most general reciprocity law, so solving Hilbert’s ninth problem. By 1920, the German school of algebraic number theorists (Hilbert, Weber, . . .) together with its brilliant student Takagi had succeeded in classifying the abelian extensions of a number field K: to each group I of ideal classes in K, there is attached an extension L of K (the class field of I); the group I determines the arithmetic of the extension L/K, and the Galois group of L/K is isomorphic to I. Artin’s contribution was to prove (in 1927) that there is a natural isomorphism from I to the Galois group of L/K. When the base field contains an appropriate root of 1, Artin’s isomorphism gives a reciprocity law, and all possible reciprocity laws arise this way. In the 1930s, Chevalley reworked abelian class field theory. In particular, he replaced “ideals” with his “idèles” which greatly clarified the relation between the local and global aspects of the theory. For his thesis, Artin suggested that Tate do the same for Hecke L-series. When Hecke proved that the abelian L-functions of number fields (generalizations of Dirichlet’s L-functions) have an analytic continuation throughout the plane with a functional equation of the expected type, he saw that his methods applied even to a new kind of L-function, now named after him. Once Tate had developed his harmonic analysis of local fields and of the idèle group, he was able prove analytic continuation and functional equations for all the relevant L-series without Hecke’s complicated theta-formulas. Received by the editors September 5, 2016. 2010 Mathematics Subject Classification. Primary 01A75, 11-06, 14-06. c ©2017 American Mathematical Society

Law's Empire

Abstract: Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007. The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network.

Judicial Review in New Democracies: Constitutional Courts in Asian Cases

Abstract: New democracies around the world have adopted constitutional courts to oversee the operation of democratic politics. Where does judicial power come from, how does it develop in the early stages of democratic liberalization, and what political conditions support its expansion? This book answers these questions through an examination of three constitutional courts in Asia: Taiwan, Korea, and Mongolia. In a region that has traditionally viewed law as a tool of authoritarian rulers, constitutional courts in these three societies are becoming a real constraint on government. In contrast with conventional culturalist accounts, this book argues that the design and functioning of constitutional review are largely a function of politics and interests. Judicial review - the power of judges to rule an act of a legislature or national leader unconstitutional - is a solution to the problem of uncertainty in constitutional design. By providing 'insurance' to prospective electoral losers, judicial review can facilitate democracy.