On Thursday, I’m delighted to be participating with Professor Bob Nagel, on a panel, moderated by Prof. Matt Franck, on Professor Keith Whittington’s new book, Repugnant Laws: Judicial Review of Acts of Congress From the Founding to the Present (2019). The event gives me a chance to return to see my old friends at the James Madison Program at Princeton University, where I spent a delightful and productive spring as a visiting fellow.
The book provides detailed empirical support for the proposition that the Supreme Court, far more often than not (at a rate of about 3:1), upholds congressional statutes than it strikes them down. Whittington extends, but also modifies and enriches, the thesis proposed by Robert Dahl, Mark Graber, and Barry Friedman, among others, that the Court is fundamentally a political institution that very often operates in accord with the other political branches. The counter-majoritarian difficulty famously discussed by Alexander Bickel, in Whittington’s hands (and as one of my exceptional students, Joe Brandt, put it in our Constitutional Theory seminar this fall), becomes a majoritarian difficulty.
I’ll have more to say about the book later, but for the moment I want to call a little attention to a small, but interesting, line in the book discussing Reynolds v. United States (1878), where the Supreme Court upheld the federal Morrill Anti-Bigamy Act against a constitutional challenge by the LDS community on the ground that the Act violated its religious freedom. Polygamy was church practice at the time. Whittington counts this as an example right in line with his general thesis, and I think he is right about that.
But he describes the case in these terms:
“As Congress embarked on new social crusades, the Court stood aside. The Republican Party denounced the polygamy practiced by the Mormons in the West as equally barbaric as the slavery practiced by the slavocracy in the South. When the postbellum Congress turned its attention to bringing the Church of Jesus Christ of Latter-day Saints to heel, the Court gave it a free hand.” (170)
It may be a small point, but to describe the Congress as “embark[ing] on new social crusades” by enacting this legislation seems to me not quite right. If anyone was embarking on new social crusades, it was the religious organization, not Congress. I mean that entirely descriptively. Laws against bigamy and polygamy were nothing new in the late 19th century. Indeed, I should think that they would have been regarded as perfectly ordinary and unremarkable, and that is exactly how the Supreme Court regarded them in Reynolds: “At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England, polygamy has been treated as an offence against society.” Enforcing long-standing social understandings by law against novel social arrangements is not social crusading. Quite the opposite.
But perhaps this difference of perspective illustrates a broader point about these sorts of descriptions. What we characterize as “social” or “moral” “crusading” (somehow, crusading has taken on unequivocally negative connotations…tant pis) will depend upon a baseline of what we value in existing social conditions and what we deem ordinary legislation to protect those conditions. “Moral” or “social crusading,” then, doesn’t seem to have much meaning beyond something like, “pursuing moral or social objectives I think illegitimate.” If that’s what it means, maybe we should just argue about those first-order disagreements directly (“which morality is best?”), rather than present those disagreements in second-order dismissals (“stop imposing your morality on me!”).