Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History
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 soand 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 themby 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.
Chapter 1: The Politics of Constitutional Meaning 1
Chapter 2: The Construction of Constitutional Regimes 28
Chapter 3: The Reconstruction of Judicial Authority 82
Chapter 4: The Judiciary in the Politics of Opposition 161
Chapter 5: The Growth of Judicial Authority 230
Chapter 6: The Dynamics of Constitutional Authority 285
What People are Saying About This
Political Foundations of Judicial Supremacy takes us deeper than ever before into the changing structure and politics of inter-branch relations. Historically comprehensive and analytically astute, Whittington's sweeping reformulation of the role of the Supreme Court alters our entire view of American government. Stephen Skowronek, Yale University
This is a major work by a major scholar. Whittington highlights for the first time unnoticed patterns in the political construction of judicial power and the growth of judicial authority in the United States. The historical evidence is complete and compelling. Mark Graber, University of Maryland
This extremely important study lays out the ways in which the U.S. tradition of judicial supremacy receives support from elected representatives. Whittington's arguments are elegant, clearly presented, and persuasive. Mark Tushnet, Harvard Law School
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