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

JUDICALIZING EVERYTHING? THE CLASH OF CONSTITUTIONALISMS IN CANADA, NEW ZEALAND, AND THE UNITED KINGDOM

Vol. 35, No. 01 (March 2025) pp. 11-13

JUDICALIZING EVERYTHING? THE CLASH OF CONSTITUTIONALISMS IN CANADA, NEW ZEALAND, AND THE UNITED KINGDOM, by Mark S. Harding. Toronto: University of Toronto Press, 2022. 181 pp. Cloth $39.95. ISBN 9781487528485. Ebook $42.95. ISBN: 9781487528508.

Reviewed by Christopher Manfredi. Department of Political Science. McGill University. Email: christopher.manfredi@mcgill.ca.

Mark Harding has written a short and readable book that applies a comparative lens to two separate debates within the literature on judicial politics and constitutionalism. The first debate, which occupies most of Harding’s analysis, is that between political and legal constitutionalism. The central question of this debate is whether rights are better protected by political institutions (political constitutionalism) or through development and application by the judiciary (legal constitutionalism). The second debate is between liberal and post-liberal constitutionalism, with the former conceptualizing constitutional rules as largely protecting individuals from government overreach, and the latter understanding constitutions as imposing positive obligations on government to regulate the private sphere to achieve a broader conception of liberty. Harding’s book examines how these debates have played out within the final appellate courts of Canada, New Zealand, and the United Kingdom.

In the interest of full disclosure, I should recognize my own biases at the outset of this review. My scholarship places me squarely in the camp of political constitutionalists who support liberal constitutionalism. However, in the context of the Westminster parliamentary systems that are the subject of Harding’s book, this positioning should not be misunderstood as nostalgia for a bygone era of parliamentary supremacy. Canada’s 1982 constitution clearly replaced parliamentary supremacy with constitutional supremacy. In my view, the debate between political and legal constitutionalism in Canada is not about preserving parliamentary supremacy (as it might be in New Zealand or the United Kingdom), it is about identifying the appropriate institutional locus for constitutional interpretation. Legal constitutionalism places this locus clearly in the courts to the extent that the judiciary enjoys a monopoly on constitutional interpretation, especially with respect to rights. A post-1982 Canadian political constitutionalist recognizes a new critical role for judicial review but also recognizes a coordinate role for political institutions in constructing constitutional meaning.

It should also be noted that, although legal constitutionalism has become the dominant perspective among post-liberal constitutionalists in Canada, this was not always the case. Indeed, many of the early critics of entrenching rights in the Canadian constitution—like Andrew Petter, Allan Hutchinson, and Michael Mandel—were post-liberal constitutionalists highly sceptical of legal constitutionalism (Hutchinson and Petter 1988, Mandel 1989). They saw political institutions as the principal source of progressive social and economic policies, and courts as the principal obstacle to those policies. Their position was grounded in the U.S. experience, where the U.S. Supreme Court’s progressive record was relatively short, spanning a 20-year period from Brown v. Bd. of Ed. (1954) to Roe v. Wade (1973). It also found support in early Canadian Charter of Rights cases, especially involving organized labour. Whether the post-liberal orientation of Canadian legal constitutionalism is now permanent is an open question.

THE SLOW VIOLENCE OF IMMIGRATION COURT: PROCEDURAL JUSTICE ON TRIAL

Vol. 35 No. 01 (March 2025) pp. 8-10

THE SLOW VIOLENCE OF IMMIGRATION COURT: PROCEDURAL JUSTICE ON TRIAL, by Maya P. Barak. New York University Press, 2023. pp. 240. Cloth $89.00. ISBN: 9781479821037. Paper $30.00. ISBN: 9781479821044.

Reviewed by: Luzmarina García. Department of Political Science. Florida Atlantic University. Email: luzmarinagarcia@fau.edu.


The Slow Violence of Immigration Court: Procedural Justice on Trial by Maya Pagni Barak examines the paradoxes that exist in plain view in both the American legal system and society at-large. This work lays out, at last, a comprehensive timeline in the immigration court process, laying out the steppingstones and the issues with each stage, noting institutional procedures and objectives, and examining enlightening interviews with immigration attorneys and moving narratives of immigrants that are/have gone through the courts.

The author, an Associate Professor of Criminal Justice Studies at the University of Michigan–Dearborn, challenges the prevailing belief in the effectiveness of procedural justice within an unjust immigration system. Barak argues that conventional approaches, such as improving due process and bureaucratic changes, fail to address systemic issues and do little to increase immigrant compliance with deportation orders. Barak conducted formal, in-depth interviews with 36 individuals between 2014 and 2016, comprised of Guatemalan, Honduran, and Salvadoran immigrants in deportation proceedings, their family members, and licensed immigration attorneys. The study also involved visits to two East Coast immigration courts, where Barak observed numerous deportation hearings. The author advocates for a shift away from strategies emphasizing the appearance of justice, urging a focus on genuine justice to promote collective well-being and human dignity in addressing the flaws of the immigration court and system.

In Barak’s work, I identified paradoxes that are vital for understanding how immigration courts exercise a “slow violence” (Pagni Barak 2023, p. 152). First, immigrants express positive opinions of the court even as they are going through its procedures, while attorneys who work within the courts express negative opinions of the process, resources, and judges’ behavior. Second, the ideal of due process versus the reality that is exercised in immigration courts is a stark contrast. Issues such as respondent language proficiency, translation quality, and video conferencing issues, which are only a few of the problems in the process, do not allow for a fair day in court. Next, there is the conflicting legal consciousness that is developed in an environment of both accurate legal information and fallacies. Legal consciousness refers to the “ways people understand and use the law,” including “the way people conceive of the ‘natural’ and normal way of doing things, their habitual patterns of talk and action, and their commonsense understanding of the world” (Merry 1990, p. 5). Barak describes how immigrants develop legal consciousness through dual socialization—in their countries of origin and in the U.S. Immigrants, therefore, bring formal knowledge of the legal systems in their origin countries but learn about American law through family stories, friends, and media. Barak also presents the paradox of immigrants’ admiration of the rule of law versus their proclivity for following the rules. Essentially, the promise of rule of law is a motivating factor for many immigrants to come to the U.S., but this admiration turns to cynicism if there is a deportation ruling in their own case. Thus, immigration law is seen as inadequate for immigrant needs in the minds of many interviewees, which causes them to justify non-compliance with adverse rulings.

RESPONSIVE JUDICIAL REVIEW: DEMOCRACY AND DYSFUNCTION IN THE MODERN AGE

Vol. 35, No. 01 (March 2025) pp. 1-7

RESPONSIVE JUDICIAL REVIEW: DEMOCRACY AND DYSFUNCTION IN THE MODERN AGE, by Rosalind Dixon. Oxford University Press, 2023. pp. 295. Cloth $105.00. ISBN: 978-0-19-286577-9.

Reviewed by: Mark Rush. Department of Politics. Washington and Lee University. Email: rushm@wlu.edu.

In Responsive Judicial Review, Rosalind Dixon seeks to re-establish or, at least, re-strengthen, the case for judicial activism and review. In so doing, she takes the reader on a tightly but elegantly argued story that addresses arguments against judicial activism, the role of courts in a democracy, and the uncertainty posed by contemporary debates about whether democracy is backsliding or evolving (Carothers and Press; Cianetti and Hanley). She weaves her narrative by drawing upon the vision of a representation-enforcing judicial review set forth by John Hart Ely. She sees this role as one that best manages the countermajoritarian tension that inheres in judicial review. Yet, her vision is grounded on the premise that democracy is now manifesting myriad symptoms of dysfunction. As a result, she regards the judiciary as perhaps the one institution that can perhaps diagnose and respond to the causes of that dysfunction. Thus, she seeks to design a “responsive” theory of judicial review that is informed by “a concern about the degree to which, absent judicial intervention, various sources of democratic dysfunction are likely to be reversible by future legislative or executive action” (p. 6).

Yet, courts must remedy democratic dysfunction while preserving the dynamism and responsiveness in the other branches of government. In this respect, Dixon sets a perilous course between the Scylla of debilitating democracy as a result of too much reliance on judicial remedies and the Charybdis of letting dysfunctional democracy careen towards a dystopian post-liberal or post-democratic alternative.

In this spirit, Dixon calls upon Ely’s spirit in order to update it.

As constitutional scholars in the 2020s, the challenge we face is to do justice to the intellectual inheritance Ely has given us, but in a way that is fit for purpose in a truly globalized constitutional universe, where the threats to democracy are manifold and increasing by the day. In doing so, our task is also to develop a theory of judicial review that responds to both the promise of courts as potential guardians of democracy and democratic values, and the inevitable limits on courts’ capacity and legitimacy in performing this role (p. 15).

With this statement, Dixon essentially offers the reader two books. One is on the role of courts in a democracy; the other is a book about what democracy is and how it is evolving. Dixon therefore offers an important opportunity to update Ely’s American-centered vision and theory of judicial review. Yet, by acknowledging the need to address the role of courts in a correspondingly broader, more global, and evolving notion of democracy, Dixon demonstrates that her task is quite challenging. To the extent that democracy is that much more complex than the vision underpinning Ely’s analysis, and to the extent that democracy is an increasingly contested concept, divining a role for courts and judicial review is that much more of a challenge. Yet, she meets it with great success.