WASHINGTON – The acting attorney general, Matthew Whitaker, once espoused the view that the courts “are supposed to be the inferior branch” and criticized the Supreme Court’s power to review legislative and executive acts and declare them unconstitutional, the lifeblood of its existence as a coequal branch of government.
In a candidate Q&A when he sought the Republican nomination for senator in Iowa in 2014, Whitaker indicated that he shared the view among some conservatives that the federal judiciary has too much power over public policy issues. He criticized many of the Supreme Court’s rulings, starting with a foundational one: Marbury v. Madison, which established its power of judicial review in 1803.
“There are so many” bad rulings, Whitaker said. “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.”
Whitaker lost the 2014 primary to Joni Ernst, who went on to win election to the Senate. But on Wednesday, he vaulted to power when President Donald Trump fired Attorney General Jeff Sessions and appointed Whitaker as the acting attorney general, putting him in charge of the Justice Department.
Since stepping into his new role, Whitaker has faced questions — principally from Democrats — about whether he should recuse himself from the Russia investigation, given that he has written opinion pieces in the past criticizing the investigation.
But two people close to Whitaker told the Washington Post on Thursday that he has no intention of taking himself off the Russia case. They added they do not believe he would approve any subpoena of Trump as part of that investigation.
Whitaker’s answers to the 2014 candidate questionnaire were published by Jacob Hall on the Caffeinated Thoughts website alongside answers by the other Republican primary contenders.
Hall said he interviewed Whitaker over the phone, writing down his answers. A spokeswoman for the Justice Department declined to comment.
His criticism of Marbury aligned with the view of some conservatives that the 1803 case — or at least how it came to be interpreted — gave the courts too much power to strike down laws. But Whitaker also criticized famous decisions in which the Supreme Court declined to strike down laws that conservatives do not like, from 1930s cases involving President Franklin D. Roosevelt’s New Deal programs to the 2012 case in which the court declined to strike down President Barack Obama’s health insurance law.
He criticized the Supreme Court for “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.”
Laurence Tribe, a Harvard Law School constitutional law professor, said that Whitaker’s expressed views of the Constitution and the role of the courts “are extreme and the overall picture he presents would have virtually no scholarly support” and would be “destabilizing” to society if he used the power of the attorney general to advance them.
Simultaneously criticizing the Supreme Court’s power of judicial review while criticizing cases where it declined to strike down laws regulating economic and health insurance matters, was a sign of an “internally contradictory” and “ignorant” philosophy, Tribe said.