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Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning Author(S): Keith E

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Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning Author(S): Keith E Northeastern Political Science Association Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning Author(s): Keith E. Whittington Reviewed work(s): Source: Polity, Vol. 33, No. 3 (Spring, 2001), pp. 365-395 Published by: Palgrave Macmillan Journals Stable URL: http://www.jstor.org/stable/3235440 . Accessed: 09/08/2012 15:06 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Palgrave Macmillan Journals and Northeastern Political Science Association are collaborating with JSTOR to digitize, preserve and extend access to Polity. http://www.jstor.org Polity * Volume XXXIII,Number 3 * Spring 2001 Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning* KeithE. Whittington PrincetonUniversity Conflictsbetween the Supreme Court and thepresident are usuallyregarded as grave challengesto the Constitutionand a threatto judicial independence.Such claimsmisrepresent the nature of these presidential challenges, however. In doing so, theypaint an unflatteringand inaccurateportrait of Americanpolitics and underestimatethe strength of American constitutionalism. This article reexamines historicalpresidential challenges to thejudicial authorityto interpretconstitutional meaning.It argues thatrather than being unprincipledattacks on judicial inde- pendence, such challenges are best regarded as historicallyspecific efforts to reconsiderthe meaning and futureof American constitutional traditions in timesof politicalcrisis and constitutionaluncertainty. Keith E. Whittingtonis assistantprofessor of politicsand JohnMaclean Jr. PresidentialPreceptor at PrincetonUniversity. He is the authorof Constitutional Construction:Divided Powers and ConstitutionalMeaning (Harvard University Press, 1999), ConstitutionalInterpretation: Textual Meaning, Original Intent, and JudicialReview (University Press of Kansas, 1999),and articleson Americancon- stitutionaltheory and development,federalism, the presidency, and thejudiciary. In 1803,Chief Justice John Marshall declared that "it is emphaticallythe province and dutyof the judicial department to saywhat the law is,"and thusclaimed for the SupremeCourt the right to determinethe meaningof the Constitutionand to hold theactions of theother branches of governmentnull and void.,Just over a century and a half laterin Cooper v. Aaron, ChiefJustice Earl Warrensomewhat con- tentiouslyinterpreted Marshall's claim as establishing"the basic principlethat the federaljudiciary is supremein the exposition of the law ofthe Constitution, and that principlehas eversince been respectedby thisCourt and the Countryas a perma- nentand indispensablefeature of our constitutional system." As a consequence,the constitutionalinterpretation "enunciated by this Court ... is thesupreme law ofthe land."2Despite Warren's assertion, judicial supremacy in constitutional interpretation *The helpfulcomments of BarryFriedman, Howard Gillman,Mark Graber, Fred Greenstein, Stephen Griffin,Stephen Skowronek, and TraceyStorey, and thefinancial assistance of theJohn M. Olin Foundation and AmericanCouncil of LearnedSocieties are gratefullyacknowledged. 1. Marburyv. Madison,5 U.S. 177 (1803). 2. Cooperv. Aaron,358 U.S. 18 (1958). 366 PRESIDENTIAL CHALLENGES TO JUDICIAL SUPREMACY has notalways been respectedby "the Country," even if it had been assumedby the Court.Throughout American history, numerous writers, political activists, legislators, stateofficials, and evenjudges have questionedthe Court's monopoly over interpre- tiveauthority." Perhaps most significantly, several presidents have deniedthe author- ityof the Courtto settledisputed constitutional meanings. In doingso, theyhave challengeda basic assumptionof American constitutional theory. PresidentFranklin Roosevelt's showdown with the Court has been paradigmatic in thisregard. The climacticmoment of the "switchin time"has helpeddefine our understandingof presidentialattacks on the Court,suggesting the limitsof judicial independenceand ofAmerican constitutionalism. To theextent that the judiciary is identifiedwith the Constitution, as ChiefJustice Warren and othershave argued that itshould be, thenchallenges to judicialauthority are easilytaken to be tantamount to challengesto constitutionalismitself. Following his mentorFelix Frankfurter, AlexanderBickel famously concluded that whenever possible the Court should hus- band itsresources by avoiding such confrontations.4Some scholarssuch as Gerald Rosenberg find such judicial retreatsinevitable, if regrettable.5Others have denouncedsuch passivityas contraryto thevery purpose of constitutionalism.6 The activeexercise of judicial supremacy is oftenregarded as vitalif "principle" is to tri- umphover "politics," "justice" over the "majority'swill."7 A closer look at the historicinstances of presidentialchallenges to judicial supremacysuggests that the stakesof such interbranchconflicts are substantially more ambiguousthan is normallyassumed. In the UnitedStates, presidents and otherpublic figures have been essentialplayers in redefininghow the Constitution is understoodand operatesin practice.Such politicalreconsideration of founda- tionalelements of Americangovernance has been centralto sustainingthe vitality of theConstitution over time. A preoccupationwith the autonomy of theCourt has directedus away fromthe constitutional purposes that motivated these presidents to take on the Courtand thatwere advanced by themin theirstruggle with the Court.This article cannot provide a completedefense or elaborationof extrajudicial constitutionalinterpretation, but through a specificexploration of a certainkind of presidentialpolitics it indicates the dynamic and politicalcharacter of theConstitu- tion.The pointis not thatjudicial review is expendablein a constitutionalsystem, butsimply that the political supports for judicial independence need furtherexam- 3. In makinghis assertion in 1958,Warren himself was respondingto justsuch a challengeby local gov- ernmentofficials in Arkansaswho were resistingthe Court's desegregation efforts. 4. AlexanderM. Bickel,77te Least DangerousBranch (Indianapolis: Bobbs-Merrill, 1962) 5. GeraldN. Rosenberg,"Judicial Independence and the Realityof PoliticalPower," Review of Politics 54 (1992): 394. 6. GeraldGunther, "The SubtleVices of the 'Passive Virtues'-A Comment on Principleand Expediency in JudicialReview," Columbia Law Review 64 (1964): 1; WilliamLasser, 77Te Limits of JudicialPower (Chapel Hill:University of NorthCarolina Press, 1988). 7. RonaldDworkin, A Matterof Principle(Cambridge: Harvard University Press, 1985), 71. Keith E. Whittington 367 inationand thatthe foundationsof judicialreview are farmore complicated than the mythicnarrative of judicial supremacy asserts. Specifically,by reconsideringpresidential challenges to judicial interpretive authoritythe article suggests four things. First, it seeks to contributeto therecovery ofthe legitimacy of extrajudicial constitutional discourse and interpretation.In keep- ingwith a growingbody of work, this article further explores the empiricalsignifi- cance and normativevalue of constitutionaldiscourse outside the judiciary.8 Second, itemphasizes the need to situatejudicial authority, as well as judicialdeci- sion-making,within the politicalsystem as a whole.9Third, the particularcase of presidentialchallenges to judicialsupremacy points to the need to transcendthe commonopposition between constitutionalism and democracyin orderto explore the fluidityof and interconnectionsbetween the two.10Finally, the articlesuggests thatchallenges to judicialauthority are partof a politicalcycle, and thusto some degree self-limiting."The boundariesof extrajudicialconstitutional interpretation are best foundin realpolitical dynamics, rather than in formalline drawing. Fora handfulof presidents, the definition of constitutional meaning is a crucial partof theirpolitical task. These presidentsmust engage in a struggleto deter- mine not onlywhat the Constitutionwill mean, but also who will decide what it means. In such contexts,presidents contend for the institutionalauthority to interpretthe politicalorder, in order to reconstructthat political order on new grounds.Conflict between the presidentand the judiciaryis a by-productof their competingclaims to authorityand relativeposition in the overallconstitutional scheme. The articlebegins with an examinationof the problemof judicial inde- pendence and itsrelationship to constitutionalpolitics. The second sectionintro- duces a theoreticalframework of politicaltime, which emphasizes the impor- tance to governmentofficials of securing political authority.This framework providesa largerpolitical context within which presidentialattacks on judicial supremacyshould be placed. The thirdsection applies thatframework to the par- 8. E.g., Bruce Ackerman,We the People. Transformations(Cambridge: Harvard Uniiversity Press, 1998); KeithE. Whittington,Constitutional Construction (Cambridge: Harvard University Press, 199)). 9. See also, CornellW Clayton,"The SupremeCourt and PoliticalJurisprudence: New and Old Insti- tutionalisms,"in Supreme CourtDecision-Making,
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