JUDICIAL VETOES: DECISION-MAKING ON MIXED SELECTION CONSTITUTIONAL COURTS

Vol. 36 No. 01 (May 2026) pp. 10-11

JUDICIAL VETOES: DECISION-MAKING ON MIXED SELECTION CONSTITUTIONAL COURTS, by Lydia Tiede. Cambridge: Cambridge University Press, 2022. 324pp. Hardback $117.00. ISBN 9781316512319.

Reviewed by Amanda Driscoll, Department of Political Science, Florida State University. Email: adriscoll@fsu.edu.

The process by which judicial authorities are selected sets the stage for judicial autonomy and institutional independence. Institutional rules that govern judicial selection – judicial nominations versus direct election, for example – have long been appreciated as an important factor in judicial decision-making, sentencing, and related judicial behaviors. In her important new book Judicial Vetoes: Decision-Making on Mixed Selection Constitutional Courts, Tiede makes a critical contribution to our understanding of these effects in constitutional courts, demonstrating that selection modality is a stronger predictor of both judicial voting and case outcomes than partisanship or ideological leaning in the constitutional courts of Colombia and Chile.

Most constitutional courts around the world disperse the authority to select constitutional jurists amongst several possible actors. Executive branch authorities, legislative majorities, judicial actors, legal system representatives such as the Ombudsman or Attorneys General, members of civil society or the legal profession all may play a role in the selection or appointment of jurists on mixed-selection constitutional courts. The resulting deliberative body then reflects a confluence of jurists who vary in their training, expertise, experience with and allegiance to the selector to whom they owe their nomination. Allegiances thus divided, these constitutional bodies are ensured their independence, such that they might not be beholden to or captured by any external institution or actor.

Tiede meticulously disassembles the historic and legislative record to trace the origins of the mixed-selection system in Colombia and Chile. She shows that the designers opted for a mixed system to both advance their own institutional interests while also dividing said influence across various loci of power. The actors who vet potential judicial nominees do so with an eye for their own institutional priorities and select adjudicators who will best advance the organizational interest while seated on the bench. Prospective judges, for their part, understand these considerations and behave accordingly both to secure the nomination and then advance said interests while in office, cultivating a reputation that will serve their professional career beyond their term on the constitutional court.

Critically, Tiede theorizes these effects at both the level of the judge and in its aggregate, also considering the possible effects that nominating institutions might have for case disposition at the level of both the panel and the Court. Considering only case outcomes would mask the effect of individual judges’ calculus and votes. Conversely, an exclusive accounting of judicial voting without consideration of final decision-making would obscure the effect of facets of collective decision-making (e.g., panel effects and quorum rules). Both can be decisive for outcomes of constitutional adjudication. The mix of selectorate judges impacts not only how individual judges decide cases but is associated with the frequency of constitutional vetoes in the context of abstract review.

HOW CONSTITUTIONAL RIGHTS MATTER

Vol. 36 No. 01 (May 2026) pp. 5-9

HOW CONSTITUTIONAL RIGHTS MATTER by Adam Chilton and Mila Versteeg. New York, NY: Oxford University Press, 2020. 396 pp. Hardcover $160.00. ISBN 978-0190871451.

Reviewed by Susan Achury, Department of Political Science, Lycoming College. Email: achury@lycoming.edu.

The language of constitutional rights has profoundly shaped global politics. The U.S. Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization (2022), which reversed Roe v. Wade (1973), has reinvigorated debates about the value of constitutionalizing rights. In the United States, advocates and scholars have argued that only formal constitutional entrenchment can secure abortion rights against future legislative erosion (Geiger 2023). Yet across Latin America, feminist movements have secured constitutional protections for abortion access and state obligations to address gender-based violence and feminicide, against similar anti-rights agendas that continue to contest these gains, although the gap between constitutional text and lived experience for women remains wide. While France has led the list of countries constitutionalizing the right to abortion, the question remains whether it is necessary to constitutionalize rights to secure their protection (Bottini et al. 2024). This question is at the center of politics beyond the feminist debates, including different political agendas, for example, those related to global movements addressing climate change and environmental rights, proposing the right to a clean, healthy, and sustainable environment, or recognizing nature as a constitutional subject, as well as the digital and technological rights, and the rights to truth, justice, and reparation.

How Constitutional Rights Matter, by Adam Chilton and Mila Versteeg, has become a cornerstone work in comparative law research. In the context of a remarkable global expansion of constitutional rights, with the average number of enumerated rights per constitution doubling between 1946 and 2016, the book presents a sobering finding: the constitutionalization of rights does not reliably produce greater respect for those rights in practice. Rather than treating this gap as an anomaly, Chilton and Versteeg treat it as their analytical baseline, shifting the question from whether constitutional rights matter to which rights matter and through what mechanism. The book employs a quantitative approach to examine this question, contributing significantly to understanding the challenges inherent in assessing the impact of constitutional rights, particularly on the gap between de jure protections and de facto outcomes.

How Constitutional Rights Matter examines eight constitutional rights—freedom of speech, prohibition of torture, freedom of movement, right to education, right to health care, freedom of religion, right to unionize, and right to establish political parties, categorizing them into individual and organizational rights, with the latter proving substantially harder for governments to encroach upon. Building on over eight years of research, the book addresses significant empirical challenges, providing a robust framework for future studies and prompting a critical examination of the effectiveness of constitutional frameworks.

IN HER OWN NAME: THE POLITICS OF WOMEN’S RIGHTS BEFORE SUFFRAGE

Vol. 36 No. 01 (May 2026) pp. 2-4

IN HER OWN NAME: THE POLITICS OF WOMEN’S RIGHTS BEFORE SUFFRAGE by Sara Chatfield. New York: Columbia University Press, 2023. pp.256. Paperback $30.00. ISBN: 9780231199674. Hardcover $120. ISBN: 9780231199667.

Reviewed by Kathleen Sullivan. Department of Political Science, Ohio University. Email: sullivak@ohio.edu

In In Her Own Name, Sara Chatfield provides a comprehensive account of married women’s property acts from 1835 to 1920, offering wider lessons for the field of law and politics. At first glance, statutes and state constitutional provisions that allowed married women to exercise economic rights seem to present a classic story of reform. The impetus for these acts, however, was not to liberate women from coverture. The acts were not even a response to women’s rights activism. A simple story of hierarchy fails to capture this experience of women’s inequality and reform.

Employing a multimethod approach, Chatfield does a meticulous job of identifying when states or territories recognized particular rights. Rather than rely on treatises or other secondhand sources, Chatfield returns to state statute books and state constitutional conventions to identify when particular states passed a law that secured a married woman’s property from paying her husband’s debt, or allowed her to control her own earnings or separate estate, to be a sole trader, or to pass along property in her will. Such rights were passed piecemeal, state by state (and territory), between 1835 and 1920. Chatfield is interested in the diffusion of these statutes and constitutional provisions. To test how states borrowed statutory and constitutional language from other states, Chatfield ran a text analysis using plagiarism software to track language and policy adoption across states (Methods Appendix). An event history analysis distinguishes among states, explaining why states passed particular statutes when they did (p. 134). This is a methodological approach never before used in historical studies of married women’s property acts. In Her Own Name will be the go-to book for a comprehensive account of married women’s property acts.

While In Her Own Name joins women’s history scholarship on married women’s property acts, its approach elicits even more contributions to current political science work in law and American political development. The motives for these statutes were seldom for the betterment of married women themselves. The first wave women’s movement soon followed the first state Married Women’s Property Act, peaking in 1920 with the Nineteenth Amendment. Yet married women’s property rights largely were not granted in response to the mobilization of the women’s movement. Instead, state legislatures and constitutional conventions had other reasons for granting those rights. Those other reasons invite us to contend with the role of liberalism in American political development. Rights are not always about improving the conditions of subjugated or excluded people. Rights can be a tool for state actors to achieve other purposes. Chatfield references the scholarship that has reckoned with the limits of rights and the instrumentality of rights in her conclusion, placing her study into analyses of rights in critical race theory, Mary Dudziak’s account (2011) of Cold War civil rights, and other key studies (pp. 171-172). Adding married women’s property acts to this critical scholarship shows that the restricting and granting of rights was a tool for political institutions to accomplish purposes other than liberating women from previous conditions of oppression. Acknowledging rights-restriction and rights-granting as a tool of institutions rather than as an outcome of reform reveals the work that rights can do for the state.

LAW AND POLITICS BOOK REVIEW, VOL. 36, NO. 01, PREFACE

Vol. 36 No. 01 (May 2026) pp. 1

Preface – New Volume, New Issue, New Editors!

Greetings,

Along with the newest volume (36) and issue (01), the Law and Politics Book Review can introduce its newest co-editors: Hayley Munir and Michael Catalano. Dr. Munir is an Assistant Professor in the Criminal Justice Sciences Department at Illinois State University. Dr. Catalano is an Assistant Professor of Political Science at the University of Scranton. We aim to carry on the tremendous legacy of service and scholarship left by our predecessors. A special thank you to the outgoing co-editors of the Law and Politics Book Review – Dr. Monica Lineberger and Dr. Jolly Emrey – for their years of service.

In this issue, we present reviews of three books tied together under the common theme of courts and the protection of individual rights. First, Kathleen Sullivan, of Ohio University, reviews IN HER OWN NAME: THE POLITICS OF WOMEN’S RIGHTS BEFORE SUFFRAGE by Sara Chatfield. Sullivan’s review emphasizes the “meticulous job” Chatfield does in explaining the economic rights of women at the subnational level in the United States from the antebellum period through World War I.

Next, Susan Achury (Lycoming College) reviews HOW CONSTITUTIONAL RIGHTS MATTER by Adam Chilton and Mila Versteeg. Achury dissects the main point of Chilton and Versteeg’s work, which argues that codifying rights into constitutions does not guarantee that those rights will gain support from political elite and policymakers.

Finally, Amanda Driscoll (Florida State University) reviews JUDICIAL VETOES: DECISION-MAKING ON MIXED SELECTION CONSTITUTIONAL COURTS, by Lydia Tiede. Driscoll contends with Tiede’s explanation defining the balance between the impact of judicial selection and ideology and partisanship on judicial behavior.

Enjoy more of what the Law and Politics Book Review has to offer by visiting our website at lpbr.net. You can also contact us via email here to recommend a book to review, volunteer as a book reviewer, and pose any other inquiries.

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THE SUPREME COURT AND THE PHILOSOPHER: HOW JOHN STUART MILL SHAPED U.S. FREE SPEECH PROTECTIONS

Vol. 35 No. 02 (October 2025) pp. 20-24

THE SUPREME COURT AND THE PHILOSOPHER: HOW JOHN STUART MILL SHAPED U.S. FREE SPEECH PROTECTIONS, by Eric Kasper and Troy Kozma. Ithaca: Northern Illinois University Press, an imprint of Cornell University Press, 2024. 288pp. Cloth $44.95. ISBN: 97815017745150.

Reviewed by Cary Federman. Department of Justice Studies. Montclair State University. Email: federmanc@montclair.edu.

In 1918, Congress passed the Sedition Act, empowering federal authorities to arrest those who sought to “incite, provoke and encourage resistance to the United States.” In due course, the government convicted five men, including Jacob Abrams, for distributing leaflets supporting a general strike, Russian communism, and Marxist calls for working-class unity. The majority opinion in Abrams v. U.S. (1919) concludes with two points: (1) Congress has the power to pass such legislation, and (2) the jury acted according to the law. Justice Oliver Wendell Holmes’s dissent, however, stands out for more than its florid language. Earlier that year, Holmes authored three unanimous opinions on the same day — Schenck v. U.S. (1919), Frohwerk v. U.S. (1919), and Debs v. U.S. (1919) — each upholding convictions of war critics under the 1917 Espionage Act. What changed?

According to Eric Kasper and Troy Kozma, the former a political scientist and the latter a philosophy professor, Holmes applied a “Millian analysis” (p. 49) absent from the opinions in Abrams, Schenck, Frohwerk, and Debs. Millian analysis is the application of John Stuart Mill’s “harm principle” to speech cases plus Mill’s idea that no one person or group of people can claim certainty over an idea. Holmes wrote: “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” The “marketplace of ideas” metaphor is a modified version of Mill’s epistemological uncertainty principle, which states that because “[w]e can never be sure that the opinion we are endeavoring to stifle is a wrong opinion” (Mill 1978, 16), a “civilized community” (Mill 1978, 9) must tolerate dissenting opinions. Presuming America to be that kind of community, Holmes argued that the First Amendment must allow each individual the right to seek truth. This, Holmes wrote, “is the theory of our Constitution.”

In The Supreme Court and the Philosopher, Kasper and Kozma set out to examine nearly every free speech case the Supreme Court has decided since the end of World War I through a Millian lens. The book has nine chapters, plus an introduction and a conclusion. Chapter Two covers cases decided prior to Holmes’s embrace of Mill’s ideas in On Liberty. This was not a Millian era. Because the Supreme Court did not yet apply

BIBLICAL JUDGMENTS: NEW LEGAL READINGS IN THE HEBREW BIBLE

Vol. 35 No. 02 (October 2025) pp. 17-19

BIBLICAL JUDGMENTS: NEW LEGAL READINGS IN THE HEBREW BIBLE, by Daphne Barak-Erez. Ann Arbor: University of Michigan Press, 2024. Hardback. ISBN 978-0-472-07658-1. Paperback. 978-0-472-05658-3; E-book, ISBN 978-472-22131-8. $34.95.

Reviewed by Malcolm Feeley. Claire Sanders Clements Professor Emeritus, School of Law, University of California at Berkeley.

The author, a former professor and dean at the Tel Aviv University Law School and since 2012, a Justice on the Israeli Supreme Court, has written a valuable book on law and the Hebrew Bible (i.e. the Old Testament, consisting of the Five Books of Moses, Psalms, Prophets, and the Kings). Contrary to other studies that compare Jewish law as elaborated and debated in the Talmud with contemporary legal issues (Dorff and Rosett, 2012), Justice Barak-Erez draws on the familiar disputes and controversies recorded in the Bible, and connects them to modern constitutional, governmental, legal, and regulatory issues. (And I should note, in her English language edition, her comparisons are drawn from familiar controversies in contemporary common law countries.) Her purpose is decidedly not to argue, “nothing changes.” Indeed, she points out vast differences between then and now. But she does emphasize that the controversies that are reported in the Bible have their counterparts today, and the ways issues were framed long ago also frames similar contemporary issues. Much is new, but the principles invoked are enduring—they respond to universal concerns about good government, judging, governing, evidence law and procedure, the legal process, and principles underlying substantive laws.

The book is divided into six parts, Law and Government; Judges and Judging; Human Rights and Social Justice; Criminal Law; Private Law; Family and Inheritance. Each Part has from fourteen to thirty-four vignettes or case studies that recount a biblical controversy, highlight the legal issue underlying it, and reflect on similar issues in contemporary law. Each discussion is no more than two or three pages long. The author sets the scene, presents the account, explains the controversy, identifies underlying principles that frame the matter, reports on its resolution, and then turns to reflect on similar contemporary issues.

Part I, Law and Government, covers constructing a constitution, separation of powers, limits of majority rule, leadership and opposition, donning the veil of ignorance, forms of interpretation, regulation, and criminal law. It is difficult to choose my favorite chapter,

COURTS UNMASKED: CIVIL LEGAL SYSTEM REFORM AND COVID-19

Vol. 35 No. 02 (October 2025) pp. 14-16

COURTS UNMASKED:CIVIL LEGAL SYSTEM REFORM AND COVID-19, Alyx Mark. Lawrence, KS: University Press of Kansas, 2025. 200pp. Cloth $69.99. ISBN: 9780700638253. Paper $24.99. ISBN: 9780700638260. E-Book $24.99. ISBN: 9780700638277.

Reviewed by Shane A. Gleason Public Policy & Law Program, Trinity College. Email: shane.gleason@trincoll.edu.

Alyx Mark’s Courts Unmasked: Civil Legal System Reform and COVID-19 begins with a seemingly simple research question: How did state courts respond to COVID-19? In answering this question, Mark moves beyond judicial politics’ historical outcomes and justice-vote focus. Rather, she draws on the judicial administration literature to focus on how the pandemic altered the civil legal system. The substantive analysis explores a plethora of legal actors ranging from local court administrators to state supreme courts. The result is a rich and multifaceted account of not only how courts responded to the pandemic, but also the institutional constraints, processes, and perceptions that led there. The mixed-method analysis occurs at both a sweeping state and nuanced local level. Ultimately, Mark presents a compelling narrative that is about far more than the pandemic; it is about how state supreme courts direct their local courts, how courts respond to changing contexts, and rich institutional variation between court systems. This book should become essential reading for anyone interested in state courts specifically or the operation of legal institutions broadly.

Using the pandemic as a vehicle for analysis, Mark explores civil legal system reform through a twofold framework. First, she argues state supreme court directives to their inferior courts during the pandemic are a function of how centralized judicial administration is in the state. This may be the difference between a state supreme court telling a lower court what to do or encouraging them to do something. Second, Mark explores how local legal actors perceive those directives and the extent to which they comply with apex court directives. While the degree of centralization certainly matters in local response, so too does the local context and the extent to which lower court actors feel buy-in with the high court’s process. While the theoretical framework is itself quite parsimonious, it underscores institutional variation between states is more complex than the presence of an intermediate court of appeals, selection mechanism, professionalism, or any other institutional feature highlighted in previous work. Rather, by drawing together scholarship from the hereunto disparate fields of judicial politics and judicial administration, Mark demonstrates institutional variation occurs on a myriad of levels which are consequential for courts’ operation.

Perhaps the most remarkable thing about this book, and one that should be more prominent, is the scope of the data. Within judicial politics data is often conceived of as opinions or perhaps briefs. Mark focuses on the administrative process. This results in multi-modal data