Political Foundations of Judicial Supremacy: The President, the Supreme Court, and Constitutional Leadership in U.S. History

Political Foundations of Judicial Supremacy, 2007

Posted: 26 Mar 2007

See all articles by Keith E. Whittington

Keith E. Whittington

Princeton University - Department of Political Science

Abstract

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 so - and 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 them - by 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.

Keywords: judicial supremacy, judicial review, departmentalism, popular constitution, presidency

Suggested Citation

Whittington, Keith E., Political Foundations of Judicial Supremacy: The President, the Supreme Court, and Constitutional Leadership in U.S. History. Political Foundations of Judicial Supremacy, 2007. Available at SSRN: https://ssrn.com/abstract=973858

Keith E. Whittington (Contact Author)

Princeton University - Department of Political Science ( email )

Corwin Hall
Princeton, NJ 08544-1012
United States
609-258-3453 (Phone)
609-258-1110 (Fax)

HOME PAGE: http://www.princeton.edu/~kewhitt/

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