The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Supreme Court

A New History of Judicial Review

A new history of how the U,.S. Supreme Court has defined and enforced the limits of congressional power


I'm thrilled to announce that my new book, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present, is now available for purchase. From the jacket copy:

The court, Repugnant Laws suggests, is a political institution operating in a political environment to advance controversial principles, often with the aid of political leaders who sometimes encourage and generally tolerate the judicial nullification of federal laws because it serves their own interests to do so. In the midst of heated battles over partisan and activist Supreme Court justices, Keith Whittington's work reminds us that, for better or for worse, the court reflects the politics of its time.

This project took a long time to bring to fruition, in no small part because I realized our conventional understandings of the history of judicial review are wrong. The book makes use of a new comprehensive catalog of all the cases in which the U.S. Supreme Court substantively reviewed the constitutional validity of an application of a federal statutory provision from the founding of the Court through the retirement of Justice Anthony Kennedy. The Court has been more active in enforcing limits on congressional power, as well as in upholding and extending congressional power, than we have generally recognized. Whose ox have been gored in the process? Dig in to see.