Judicial supremacy in American history is the subject of Keith E. Whittington's fine book Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Whittington—William Nelson Cromwell Professor of Politics at Princeton University and author of several books on related subjects—endeavors to explain the political process through which judicial power garners its authority.

Many politicians and scholars explain judicial supremacy via a legal logic that identifies the constitutional interpretive power as the source of judicial supremacy. Whittington, however, endeavors to “develop a different logic, a political rather then a legal logic” (15, emphasis added). “Over the course of American history,” Whittington asserts, “there has been no single, stable allocation of interpretive authority. Rather, various political actors have struggled for the authority to interpret the Constitution” (15). Whittington, thus, challenges accepted theories of judicial supremacy. “If judicial supremacy cannot simply be assumed to exist,” the author argues, “then it must be politically constructed. This book is concerned with the process by which judicial supremacy has been constructed over the course of American history” (4).

Far from the isolated and aloof picture of the Court many hold, Whittington argues that the “the Court must compete with other political actors for the authority to define the terms of the Constitution” (26). Among these crucial coactors is the president. Thus, Whittington's book is devoted primarily to the relationship between the Supreme Court and the presidency. The empirical-historical reconstruction of this relationship over the course of U.S. history serves as Whittington's case study. From that case study, the author draws the novel conclusion that “the American judiciary has been able to win the authority to independently interpret the Constitution because recognizing such an authority has been beneficial to others” (27).

Whittington is critical of the “normative defense of judicial supremacy” (41) and instead seeks a “political explanation” (41). Building on the valuable—but flawed—judicial theorizing of Robert Dahl and Bruce Ackerman, the author eschews trans-contextual theorizing. Instead he asserts, “These presidential challenges to the judicial authority . . . can be better understood if they are placed within their particular historical context” (49). Whittington thus makes a prudent methodological move. Supplementing theory with historical analysis within “political time” is commendable. Consequently, Whittington's historical analysis of presidential attempts to seize constitutional interpretive authority engenders a much more holistic account of the phenomena. And rather than supplanting the departmentalist theory, it adds a valuable variable—context—that renders the theory more explanatorily powerful. Whittington's method is complemented by his theoretical framework comprised of his analytic framework of “reconstructive,” “affiliated,” “oppositional,” and “preemptive” presidents. Significantly, then, Whittington contributes conceptually and methodologically to scholarship in the fields of judiciary and presidency studies.

With Whittington's thesis presented in chapter 1, readers are primed for his argument in subsequent chapters. In chapter 2 the author argues that “reconstructive” presidents have often challenged judicial supremacy in ways that have shifted constitutional authority from the judiciary to the presidency. In support of this claim, Whittington offers evidence. According to the author, Thomas Jefferson “was the first president to embrace the departmentalist theory.” The “departmentalist theory” held that constitutional interpretation was a task of each branch of government. Thus, the Jeffersonians “had come to power challenging the authority of the federal judiciary” (32). Andrew Jackson, too, affirmed the departmentalist theory in his ruling regarding the Second National Bank. Whittington, not surprisingly, cites Lincoln as further evidence of the struggle between the presidency and the courts over constitutional interpretive authority. Lincoln, the author writes, “offered yet another variation on the departmentalist theme,” as did Franklin Roosevelt some years later (34–38). Reagan's presidency, too, appears to support Whittington's thesis. Characteristic of all “reconstructive presidents,” then, is their attempt to assert superior constitutional interpretive authority, while simultaneously attempting to supplant the authority of the Court and endeavoring to reconstruct their inherited constitutional regime.

In chapters 3 and 4, Whittington argues that “reconstructive presidents” are less common than “affiliated presidents”—the latter tend to interpret not the Constitution, but rather, a preceding reconstructive presidents' interpretation of that document. Thus, affiliated presidents “continuing, extending, or more clearly reconceptualizing the fundamental commitments made by an earlier reconstructive leader” (23), do not establish new modes and orders. Whittington continues to support his thesis with historical examples drawn from periods of American history in which affiliated presidents have held power. Moreover, the evidence appears to support Whittington's assertion that judicial authority remains intact under affiliated presidents because “[i]n the politics of affiliation, the justices generally swim with the political current, and they can make substantial progress as a result” (160). As for “oppositional” or “preemptive presidents,” Whittington explains that “Judicial authority to interpret the Constitution within the politics of opposition is likely to be secure” (161). The case is made effectively. Presidents and the Court in “oppositional” contexts do appear to behave as Whittington's theory anticipates. Furthermore, while one cannot help but think that some contrary cases may be identifiable, Whittington's argument is sound enough to withstand such anomalies.

Chapter 5 offers a fairly satisfactory explanation of the expanding judicial interpretive authority of the United States Supreme Court. Employing examples from the Federalist period to the Reagan administration, the author demonstrates how numerous presidents—especially oppositional and preemptive presidents—have cited the Supreme Court's rulings as validation for their particular policies and broader policy agendas. Thus, the case is made that while judicial authority has always been contested, in recent times political leaders, especially the president, have been less interested in wresting that authority away from the Court—but only because presidents have found that the public reverence for the Court's authority can be a politically advantageous tool. While some may dispute Whittington's selective use of historical examples, the onus is on the critics to offer a contrary account.

One aspect of Whittington's argument is problematic. In his conclusion, the author writes, “Since the late nineteenth century, the exercise of judicial review has often been posed as having legitimacy problems in a democracy… . A countermajoritarian court is thought to obstruct the will of the people's elected representatives and frustrate the realization of electoral outcomes” (293). Yet, Whittington does little to address this matter—indeed he rather curtly dismisses the issue by asserting that “the place of judicial interpretation of the constitution in a democracy is more complicated than is often assumed” (293). Whittington's own book has demonstrated the veracity of this claim. Nevertheless, the issue of judicial countermajoritarianism is an enduring one. Despite Whittington's analysis of the struggle over constitutional interpretive authority between the Court and the presidency, the issue of countermajoritarianism—which relates directly to the question of democratic authority—is not effectively considered.

Criticisms aside, Political Foundations of Judicial Supremacy is a first-rate work of scholarship and highly recommended to advanced undergraduates, graduate students, and scholars of the U.S. Constitution, Supreme Court, and presidency.