Volume 19

Party Coalitions and Supreme Court Politics: Additional Lessons from Whittington's Repugnant Laws

by Howard Gillman

In this review essay, I elaborate on the lessons regarding the U.S. Supreme Court’s exercise of judicial review in Keith Whittington’s magisterial book Repugnant Laws. These include his fundamental challenges to our under-standing of the origins of judicial review, the relative importance of Marbury v. Madison, the empirical assumptions underlying the so-called counter- majoritarian difficulty, and the relative “activism” of the Supreme Court at different times in American history. Central to Whittington’s analysis is his adoption of a “regime politics” approach to the study of courts, and I elaborate on what it is about this approach that allows Whittington to successfully challenge so much conventional wisdom. Finally, I suggest how we might adapt Whittington’s analysis to the Trump Era. Because most of Whittington’s major conclusions about Supreme Court politics assume the existence of dynamic party systems with significant intra-party cleavages, I explore how Supreme Court politics might be different during an extended period of severe party polarization, increasing ideological coherence between the parties, and persistently divided government.

Keep Reading Party Coalitions and Supreme Court Politics: Additional Lessons from Whittington’s Repugnant Laws

Subscribe to GJLPP