In a 2014 interview, the man Donald Trump just picked to run the Department of Justice appeared to claim that Social Security is unconstitutional and that basic labor laws like the minimum wage must be struck down. Yet he also seemed to argue that the Supreme Court should not decide constitutional cases at all.
The interview reveals that Acting Attorney General Matthew Whitaker is easily taken in by conspiracy theories — he claims he was “quite possibly targeted for my political beliefs via the IRS.” Whitaker launches into a Trumpian rant against “chain immigration” and “people trying to bring illegal people and illegal drugs into our country.” He claims that climate change “doesn’t appear to be that significant or quite possibly isn’t man made,” and calls for the Department of Education to be “disbanded.”
But the most revealing part of the interview, which was published by the conservative blog Caffeinated Thoughts while Whitaker was a candidate for the United States Senate, is a paragraph where Whitaker lays out his incoherent understanding of the Constitution. At best, this paragraph suggests that the man running the Justice Department does not understand some very basic legal concepts. At worst, it indicates that he has a disorganized mind that is unable to keep track of what he said just a few seconds ago.
The courts are supposed to be the inferior branch of our three branches of government. We have unfortunately off loaded many of our tough public policy issues onto the court and they’ve decided hem [sic]. Unelected judges are deciding many of the issues of the day. There are so many (bad rulings). I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.
To break this down, Whitaker makes two mutually exclusive claims. He first claims that Marbury v. Madison, a seminal Supreme Court decision holding that federal courts are allowed to review state and federal laws and strike them down if they are inconsistent with the Constitution, was wrongly decided.
Two sentences later, however, Whitaker then suggests that “all New Deal cases that were expansive of the federal government” — that is, decisions where the Supreme Court did not strike down laws creating Social Security, regulating the workplace, or otherwise enacting progressive policies — were also wrongly decided.
It should be obvious that these two viewpoints cannot exist together at the same time. If Marbury was wrongly decided, that means that courts do not have the power to engage in judicial review of laws that allegedly violate the Constitution — which would mean that the Supreme Court lacks the power to strike down New Deal era laws.
Marbury rested on two foundational legal principles. The first is that “it is emphatically the duty of the Judicial Department to say what the law is” — that is, when litigants present a dispute over what the law requires, the judiciary is the body which resolves that dispute. The second principle is that “the Constitution is superior to any ordinary act of the legislature.” Taken together, these two principles establish that the courts shall decide when the Constitution overrides a legislative act.
A minority of legal academics, many of them left-of-center, criticize Marbury and argue that judicial review is, at the very least, undesirable. This leftward opposition to Marbury makes sense. As I argue in my own book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, the Court is, with rare exceptions in American history, a deeply reactionary institution that most often used judicial review to impose conservative policies on the nation. The current Court, with its deeply conservative majority and two Trumpian members, is likely to continue this practice.
Nevertheless, after a brief period in middle of the twentieth century when liberals dominated the Supreme Court and often struck down conservative laws, several prominent conservatives also became critics of judicial review. Few went so far as to claim that Marbury is wrongly decided, but conservative legal rhetoric in the Nixon, Reagan, and Bush years typically emphasized the need for judicial restraint.
As then-Secretary of Homeland Security Michael Chertoff told the Federalist Society in 2006, “in large part because of the work that the Society and others have done, the claim for judicial modesty is sufficiently well-established that everybody understands, even the critics of that claim, that they have to take it seriously and they have to address it.”
Then President Obama happened, and many of the same Federalist Society voices became vocal critics of judicial restraint. Fringe figures within the conservative legal community started speaking of “judicial engagement,” a euphemism for reviving long-discredited legal theories that early twentieth century justices used to strike down minimum wage laws, laws protecting the right to unionize, and similar progressive legislation.
Whitaker’s rant against both Marbury and the Roosevelt Era decisions upholding the New Deal echo the lunatic fringes of both conservative critics of judicial review and conservative proponents of “judicial engagement.” Whitaker is simultaneously tossing red meat to wild-eyed radicals who think that courts should be stripped of the power of judicial review, while also tossing red meat to a different set of radicals who believe that the Supreme Court’s right flank should turn judicial review up to eleven.
It’s unclear whether Whitaker is a cynic or a fool. That is, it is genuinely difficult to tell whether the former candidate understood that he was expressing two mutually contradictory viewpoints, or whether he was just echoing words that he does not comprehend, but that he probably heard somewhere from other conservative lawyers.
Either option, however, paints him as unfit to lead the Justice Department. Either Whitaker is a man of no conviction beyond “the right should always win,” or he lacks the knowledge and intellectual capacity to do his job.