| Book Review | Law and History Review, 26.3

Book Review

Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidents, the Supreme Court, and Constitutional Leadership in U.S. History, Princeton: Princeton University Press, 2007. Pp. xii + 303. $35 (ISBN 978-0-691-09640-7).

The enterprise of constitutional interpretation demands responses to at least five sets of questions. The first, "why interpret the constitution," is easily answered: Important problems inevitably arise; and constitutional texts, traditions, underlying political theories, and earlier interpretations frequently offer only suggestions that may point in different directions. The second question, "when to interpret," can be answered even more briefly: Often.

The remaining questions require complex responses. The third, "what is the constitution that is to be interpreted," is typically ignored by American interpreters. What does "the constitution" include? Only the text? The text plus or minus some other thing(s)? If so, what other thing(s)? How should interpreters justify inclusion(s) and/or exclusion(s)? Closely related are queries about function(s): Is the constitution merely a blueprint for government? Or is it also a statement of goals and ideals? Does it perform additional functions for society? "What" also raises issues of a constitution's authority. Is it merely hortatory or does it impose legal obligations? Or do different parts entail different kinds of obligations? How should interpreters answer these questions and how can they justify their conclusion(s)?

The fourth question is "how interpreters should interpret the constitution?" Answers will vary depending on the responses to the sub-queries about "what" and who are its legitimate interpreters (discussed below). Furthermore, the line between creating and interpreting a constitution can be blurred. Interpretations might birth a different constitutional order. The American system was different at 1 p.m., May 17, 1954, from what it had been at high noon, when Jim Crow was still gasping for legitimacy. It follows that responses to any of these basic questions involve considerations of judgment. Whatever it includes, whatever its functions, whatever its authority, and whoever its interpreters are, a constitution is a political concept in Aristotle's sense of being "a way of life" that leaders of a society consider best contributes to citizens' nobility. And maintaining a way of life requires wisdom, not merely logical deduction.

The question "who interprets" also arises. Because almost everybody does, the real issue is whose interpretations trump others'? A constitutional order could designate an ultimate interpreter, leave final decisions to the electorate, or provide that different officials could exercise final interpretative authority over different aspects of "the constitution." The U.S. Supreme Court's doctrine of "political questions" staggers toward this answer, as do more intelligible theories of departmentalism. A constitutional order might leave it to all branches of government and, on occasion, the electorate, to compete for interpretive equality or superiority. If this last possibility were a reality, trumps might not always be located in the same hand; or these cards might be distributed so that, at a given moment, a stalemate would exist. If this sort of situation obtains, the term "final interpreter" could be only temporarily final, not finally final.

Keith Whittington thoughtfully addresses a portion of the question of "who interprets." His focus is on the United States and mostly on presidential challenges to claims of judicial supremacy. Recognizing that constitutional interpretation is an eminently political process, he examines the question "who" in the context of presidential efforts to effect new public policies or preserve old ones. Most obviously, these struggles have been about power, the power to determine what the constitutional order demands, forbids, and permits so that a president may do what he thinks the country needs. Congress and leaders of political parties always lurk in the background. Indeed, these people may pose such serious threats that a president would agree to judicial supremacy to protect his most cherished policies. Or, a president might have no agenda of his own for which he is willing to fight.

Whittington's principal objective, he says, is to discover why other political actors have so often been willing to anoint judges as the ultimate constitutional interpreters. To pursue this quest, he adroitly utilizes Stephen Skowronek's models of presidential leadership in The Politics Presidents Make: Leadership from John Adams to George Bush (1993). The presidency is an office both constitutionally "empowered and restrained," but restraints can be loose or tight. "Reconstructive presidents" want to make sweeping changes in widely held values and thus public policy and have, they believe, the necessary popular support. These presidents, such as Jackson, Lincoln, and FDR, have challenged judges who support the status quo. These men, however, are truly exceptional in opportunity as well as talent and ambition. More often, incumbents can do little to advance their own agenda without compromising with powerful allies. Whether called "orthodox innovators" or "affiliated leaders," of necessity these presidents have goals more limited than their reconstructive cousins. They may even be obliged to expend scarce resources to protect preferences for the status quo. In such situations, judges may be useful in weakening opponents' claims to constitutional legitimacy and confirming the legitimacy of a president's goals. "Judicial authority," Whittington says, "is strong at these moments precisely because regime [presidential] authority is weak" (72).

Whittington has a superb command of American constitutional history and he writes clear, at times elegant, prose. Moreover, in this book he does not repeat his earlier claims that interpreting the American constitutional system requires gnostic knowledge of the intentions and understandings of long dead founders. Rather, he analyzes a sometimes stormy, sometimes quiet, but usually uneasy relationship between presidents and judges, then tries to account for variations in these relationships. In these tasks he succeeds wonderfully well. He has produced the most systematic study yet available of presidential efforts to shape the constitutional order.

Still, I found some problems that are not trivial. First, Whittington admits, that "[r]econstructive presidents are most concerned with establishing their own substantive vision of the constitutional order. Conflict with the Court is merely a by-product of this primary focus" (53). Yet, he does not explain the nature of these clashing visions, how much any one triumphed, and what the consequences have been for the American constitutional order. He does not address the question of "who interprets" with much overt attention to the "what" of constitutional interpretation. It would have been illuminating had a scholar of Whittington's skill explored the nature of the constitutional changes these disputes did or could have engendered. Answers would strengthen the case for the critical nature of the quest for answers to who are, at least for the time being, the ultimate constitutional interpreters and would have made this important book even more important.

The second shortcoming is that, although Whittington's focus on the presidency is subtle, cogent, and intelligent, he does not sufficiently attend to Congress's sometimes very active role as constitutional interpreter, competing with both president and Supreme Court. The very first Congress, by broadly interpreting the "sweeping clause" of Article I and its own authority under Article III as well as by refusing, despite concerted Anti-Federalist efforts, to include the word "expressly" in what became the Tenth Amendment, set the tone for much constitutional development. Because the Supreme Court was still in its cradle, there was no conflict with the judiciary; and Washington's apparent agreement eliminated conflict with the presidency. But later claims to legislative equality or even supremacy have been bitterly contested, most dramatically after the Civil War and during the late 1950s when Southern Democrats and ultra-conservative Republicans tried to overturn the Warren Court's decisions regarding segregation and internal security. In those battles, presidents played important roles.

A third criticism relates to Whittington's occasional use of the term "separation of powers" almost fifty years after Richard Neustadt's Presidential Power (1960) showed how misleadingly it characterizes the American political system. If Whittington's own analysis shows anything—and it shows a great deal—it is that the interpretive power is shared. It is not a monopoly of any department. And so it is with many other governmental powers.

Perhaps a fourth criticism asks too much of even such a fine book. Nevertheless, it would have considerably enriched Whittington's analysis and readers' understanding had his efforts not been restricted to the United States. In recent decades, Canada, Ireland, France, and Germany, for example, have experienced similar conflicts. How these struggles played out and were (temporarily) resolved would sharpen our comprehension of our own system. Such an analysis might also continue the migration of the study of constitutional politics from the status of a sub-field either of American government or constitutional law to a field of its own with important concerns that transcend current parochial academic boundaries.

These criticisms are not insubstantial. Still, this book stands out as the best and most sophisticated study of the problem of "who interprets" in the American context. It would be marvelous if these criticisms spur Whittington to deploy his considerable talents on the problems to which these comments point.

Walter Murphy

Princeton University

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