BALLOT BLOCKED: THE POLITICAL EROSION OF THE VOTING RIGHTS ACT

Vol. 28 No. 5 (August 2018) pp. 70-72

BALLOT BLOCKED: THE POLITICAL EROSION OF THE VOTING RIGHTS ACT, by Jesse H. Rhodes. Stanford: Stanford University Press, 2017. 264pp. Cloth $90.00 ISBN: 0-80479-759-5. Paper $27.95 ISBN: 1-50360-351-2.

Reviewed by Kyle L. Kreider, Department of Political Science, Wilkes University. Email: Kyle.Kreider@wilkes.edu

One of the more startling and consequential decisions of the Supreme Court’s 2012 term was SHELBY COUNTY V. HOLDER (2013). The ruling in the case struck down Section 4 of the Voting Rights Act of 1965 (VRA), a provision which established the formula to determine which governmental entities would be required to seek preclearance from the federal government before changing its election law. How could the Supreme Court strike down a provision that had been a bedrock of civil rights voting law for almost 50 years and had just been renewed by overwhelming majorities in the House and Senate in 2006?

In this timely, well-researched book, Rhodes answers this question by providing the appropriate context and helping the reader understand the historical development of federal voting rights politics. Specifically, Rhodes provides answers to why did “key conservative Republican officials consistently adopt administrative and judicial decisions that undermined the very legislation they previously endorsed?” and “why did the legislative text, administrative implementation and judicial interpretation of the VRA so frequently [work] at cross-purposes?” (pp. 3-4)

While political scientists have often debated which institution – the executive branch or the judicial branch – is best equipped to advance civil rights, Rhodes contends that the argument is “somewhat misplaced” because we should instead think of our branches of government as “fairly fluid institutions whose influence on civil rights policy making can vary dramatically depending on who is occupying them and for what purposes” (p. 5). While the Warren Court and Democratic-leaning bureaucrats have often interpreted the VRA in an expansive way, the Burger, Rehnquist, and Roberts Courts, and Republican-led agencies have often provided more restrictive and state-friendly interpretations of the VRA.

A strength of the book is its process-tracing approach and how that methodology is articulated in the organization of the chapters. In Chapter 1, Rhodes explains the historical context and politics that led to the passage of the VRA as well as the difficulties associated with immediate implementation of the act. Specifically, President Johnson had to manage competing demands within the Democratic Party as well as Republicans who were skeptical of what the administration might attempt to get through Congress. Rhodes notes that “[s]uccessful negotiation of these difficulties required all of the president’s legislative prowess as well as compromise on the part of civil rights activists and liberals who had desired stronger legislation” (p. 37). In the end, the White House, members of Congress, and civil rights activists all had to compromise in order to pass the Voting Rights Act of 1965.

BUDDHISM, POLITICS AND THE LIMITS OF LAW: THE PYRRHIC CONSTITUTIONALISM OF SRI LANKA

Vol. 28 No. 5 (August 2018) pp. 68-69

BUDDHISM, POLITICS AND THE LIMITS OF LAW: THE PYRRHIC CONSTITUTIONALISM OF SRI LANKA, by Benjamin Schonthal. New York: Cambridge University Press, 2016. 304pp. Hardback $116.00. Paper $35.99. ISBN: 9781316606414.

Reviewed by Tamir Moustafa, School for International Studies, Simon Fraser University, Canada. Email: tmoustafa@sfu.ca.

Recent years have seen explosive growth in research examining the intersection of comparative constitutional law and religion. Interestingly, much of this new work is produced by scholars with no formal training in law; perhaps half or more comes from scholars of religion, anthropology, history, and politics, all of whom are increasingly drawn to the study of legal institutions to better understand and document the profound “radiating effects” of law (Galanter 1983) on religion, politics and society.

Benjamin Schonthal’s BUDDHISM, POLITICS AND THE LIMITS OF LAW: THE PYRRHIC CONSTITUTIONALISM OF SRI LANKA represents the best of this work. It underlines the critical importance of a law and society approach for anyone wishing to gain insight into the promise and perils of constitutionalizing religion and religious freedom. The book builds upon Schonthal’s dissertation, which won the Law and Society Association’s Dissertation Award in 2013. Although his formal training is in religion, Schonthal’s book is essential reading for anyone wishing to understand the ways that state management of religion and religious freedom increasingly shape a range of important social, political, and religious dynamics.

The book advances a bold argument: Rather than consistently mitigating disputes over religion, constitutional protections on religion and religious freedom instead frequently exacerbate social and political tensions. The argument builds on an impressive foundation of over 14 months of fieldwork in Sri Lanka and extensive engagement with primary source material across four languages (English, Sinhala, Tamil, and Pali). The in-depth treatment of a single country case study allows Schonthal to develop and substantiate his argument in a manner that would not be possible in a large-N or multi-country study.

The introductory chapter sets the stage for a probing assessment of the assumption that constitutional protections on religious freedom invariably work to ameliorate religious conflict. The empirical chapters then assess this common supposition against the experience of Sri Lanka since independence. Part One of the book (Chapters 2-4) provides a detailed historical account of the development of Sri Lanka’s constitutional framework vis-à-vis religion. Schonthal draws on drafting documents, oral histories, submissions from citizens and civil society groups, government memoranda, and transcripts of debates to detail the points of disagreement over constitutional text. Schonthal zeros in on the efforts of Ceylonese and Sri Lankan politicians to reconcile a “promotional paradigm” (one that is concerned with promoting rights and protections for Buddhism specifically) with a “protectionist paradigm” (one that is concerned with protecting the fundamental rights for all citizens). The “Buddhism Chapter” of the Constitution of Sri Lanka thus affirms that the state “shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana” (p. 10). This clause is then immediately balanced with explicit reference to a variety of liberal rights, including the right to religious freedom. Schonthal shows how these parallel commitments were the result of efforts to bridge disagreements, a familiar dynamic in constitution-drafting processes (Lerner 2011; Bâli and Lerner 2017).

THE FOURTH AMENDMENT IN FLUX: THE ROBERTS COURT, CRIME CONTROL, AND DIGITAL PRIVACY

Vol. 28 No. 5 (August 2018) pp. 65-67

THE FOURTH AMENDMENT IN FLUX: THE ROBERTS COURT, CRIME CONTROL, AND DIGITAL PRIVACY, by Michael C. Gizzi and R. Craig Curtis. Lawrence, KS: University Press of Kansas, 2016. 188pp. Paper $19.95. ISBN: 9780700622573.

Reviewed by Staci L. Beavers, Department of Political Science, California State University San Marcos. Email: sbeavers@csusm.edu. 

In today’s relentless and exhausting “breaking news” environment, publications risk obsolescence even before hitting the presses (or the web). To review a book with a publication date of 2016 in the Spring of 2018 almost isn’t playing fair. But Michael C. Gizzi and R. Craig Curtis’ THE FOURTH AMENDMENT IN FLUX: THE ROBERTS COURT, CRIME CONTROL, AND DIGITAL PRIVACY is holding up well so far. It’s still timely now, given its effective preview of what came to the Court in its most recent term as CARPENTER V. UNITED STATES. CARPENTER focused on warrantless government access to several months’ worth of Cell Site Location Information (CSLI) data and was probably the most highly anticipated Fourth Amendment case of the last several SCOTUS terms. Gizzi and Curtis’ thoughts on other Fourth Amendment controversies now working their way up to the Supreme Court remain to play out over the next several years. As these controversies develop, Gizzi and Curtis’ book can continue to provide helpful context for students as well as readers outside the academic world who are interested in understanding both the Supreme Court’s Fourth Amendment jurisprudence over time and where the Roberts Court may take the Fourth Amendment into the future.

To my own detriment, I got the chance to review this book only after wrapping up my first semester of teaching undergraduate constitutional law after several years away from the classroom. In retrospect, reading THE FOURTH AMENDMENT IN FLUX first would have provided me a solid but quick-read refresher on the evolution of Fourth Amendment jurisprudence since before the Warren era and an excellent update on the Fourth Amendment record of the Roberts Court. The book benefits from bringing together multiple disciplinary perspectives: Michael C. Gizzi is a criminal justice scholar and R. Craig Curtis is both a J.D. and a political scientist.

The authors argue that the Roberts Court is potentially standing at a crossroads with respect to the Fourth Amendment. A majority of the Roberts Court remains committed to and has expanded upon what Herbert Packer (1968) long ago labeled a “crime control” orientation in most search and seizure cases, an orientation which has dominated the Supreme Court since the Burger era. However, those cases implicating technologies widely used by the American public may ultimately push the Court to reconsider the Fourth Amendment’s requirements somewhat more broadly.

Gizzi and Curtis discuss a notable uptick in pro-defendant Fourth Amendment rulings since October 2010. They attribute this shift in part to the thinking of Justices Sonia Sotomayor and Elena Kagan and in part to a shift in the Fourth Amendment thinking of the late Justice Antonin Scalia in the latter years of his life. They caution, however, that most of the Roberts Court’s pro-defendant Fourth Amendment decisions serve primarily simply “to curb some of the excesses of law enforcement” (p. 6) allowed by previous crime control-leaning rulings. They illustrate the Roberts Court’s continued support for crime control principles by noting, for example, that several rulings that find in favor of defendants also provide tips to lower court judges and law enforcement officials to minimize their impact on remand (pp. 140-141) and to avoid dismissals or reversals in future Fourth Amendment cases (p. 76). FLORIDA v. J.L. (2000) provides an example of this latter tactic; here the Court provided guidance to lower court judges on how to allow stops based on anonymous tips by discussing [*66] “what constitutes sufficient indicia of reliability for an anonymous tip” (p. 76).

GAY RIGHTS AND THE CONSTITUTION

Vol. 28 No. 5 (August 2018) pp. 59-64

GAY RIGHTS AND THE CONSTITUTION, by James Fleming, Sotirios Barber, Stephen Macedo, and Linda McClain. St. Paul, MN: Foundation Press, 2016. 463 pp. Paper $35.00. ISBN: 978-1-634-60268-6.

Reviewed by Paul Chen, Department of Political Science, Western Washington University. Email: paul.chen@wwu.edu.

When GAY RIGHTS AND THE CONSTITUTION (hereinafter referred to as GRC) came out, it looked like the perfect book for my legal philosophy seminar. I wanted to focus on the coming clash before the U.S. Supreme Court between gay rights and religious liberty, a clash created by the Court itself. In full disclosure, I requested to write this review because, having used the casebook twice for my seminar, I felt I was in a good position to assess its usefulness and benefits for other instructors.

Quoting from the Preface, the editors note that “[d]espite dramatic changes in American constitutional law regarding sexual orientation over the last two decades, and despite the general public’s keen interest in these changes, a brief collection of the leading judicial opinions has yet to be published.” GRC was intended to “fill this need,” and the editors “have tried to make it accessible to a wide range of students, scholars, and educated citizens with no specialized background in constitutional law” (p. iii).

GRC is a casebook, which is usually intended for use in post-graduate law courses, with content consisting primarily of edited legal cases to “show[] the evolution of judicial doctrine in a particular area of the law” (p. iii). But in addition to functioning as a casebook, the editors also wanted GRC to “look[] beyond judicial doctrine” and try to “connect the gay rights debate to issues of longstanding importance about the best conception of the form of democracy embodied in the Constitution, the Constitution’s basic normative properties, the principles of individual liberty and equality, and the role of the judiciary” (p. iii).

GRC succeeds in accomplishing these stated aims. It is suitable for use in both law school and undergraduate courses. As a casebook, which tend to focus on “black-letter law,” GRC introduces law students to legal doctrines “involv[ing] a broad range of substantive issues, like the jurisprudence of personal liberty, equal protection, freedom of association, free exercise of religion, and freedom from establishment of religion” (p. iii). But it is also suitable for undergraduate courses, which tend to have a broader liberal-arts focus.

AMERICA'S WAR ON SAME-SEX COUPLES AND THEIR FAMILIES: AND HOW THE COURTS RESCUED THEM

Vol. 28 No. 5 (August 2018) pp. 56-58

AMERICA'S WAR ON SAME-SEX COUPLES AND THEIR FAMILIES: AND HOW THE COURTS RESCUED THEM, by Daniel R. Pinello. New York: Cambridge University Press, 2017. 330 pp. Cloth $89.87. ISBN: 9781107123595. Paper $33.03. ISBN: 9781107559004.

Reviewed by Erin M. Mayo-Adam, Department of Political Science, Hunter College, CUNY. Email: Erin.Mayo-Adam@hunter.cuny.edu

In AMERICA’S WAR ON SAME-SEX COUPLES AND THEIR FAMILES: AND HOW THE COURTS RESCUED THEM, Daniel R. Pinello provides a masterful account of how lesbian and gay couples were impacted by Super DOMAs and how they effectively fought back against the anti-gay movement through litigation, culminating in the legalization of marriage equality through the Supreme Court decision OBERGEFELL V. HODGES in 2015. AMERICA’S WAR serves as the bookend to Pinello’s excellent 2006 book AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE. As in AMERICA’S STRUGGLE, Pinello’s most recent book articulates a compelling argument supporting the use of courts in struggles for social change. In doing so, the work re-enters a decades-long scholarly debate about whether or not the courts can ever serve as vehicles for achieving rights wins. Pinello incisively illustrates how courts have played a decisive role in securing the right to marriage for lesbian and gay couples. The volume focuses on the trauma same-sex couples experienced during Super DOMA campaigns, what happened to these couples and their families after Super DOMAs became law, and the role the courts played in eliminating Super DOMAs across the United States.

AMERICA’S WAR digs deeper into the role of the courts in movements for social change than Pinello’s previous work. The book uses rich ethnographic data – 203 in-depth interviews with same-sex couples across six different states – to illuminate the interdependence between courts and politics in struggles for change. Pinello persuasively articulates how the way local courts interpreted Super DOMAs often depended on the activities of interest groups. The impacts of Super DOMAs varied across the different states in Pinello’s study and that variation could be explained in part by the local power of anti-lesbian and gay interest groups. The more institutionalized and well-funded the organization, the more likely courts would restrict the rights of lesbian and gay couples when interpreting the extent of Super DOMAs.

The volume has several strengths. It compellingly illustrates how same-sex couples were impacted by Super DOMAs from the standpoint of the couples themselves. The book is an oral history of one of the darkest moments in recent history for lesbian and gay couples. The narrative is told through the lens of same-sex couples who lived through Super DOMA campaigns. This is a novel approach when it comes to scholarship and popular histories on same-sex marriage and the courts, which tends to overemphasize the role of national organizations. Pinello rightly identifies grassroots campaigning as the epicenter of the war on the rights of same-sex couples in the 2000s. This is refreshing in the field of law and politics, where scholarship too often examines only courts and political institutions without also analyzing the role that everyday people at the grassroots level play in the formation of law. Through this approach, Pinello not only delineates the concrete ways that lesbian and gay couples were negatively impacted by Super DOMAs, but he also illuminates how these laws motivated lesbian and gay couples to organize politically and to “steel themselves for more open lives as proudly lesbian and gay citizens of [*57] their state” (p. 63). This perseverance is awe-inspiring in light of the fear, insecurity, and emotional loss Pinello’s interviewees articulate in response to the ratification of anti-lesbian and gay laws. Pinello brilliantly crafts a narrative driven by these interviews, which makes the book a must-read for scholars of law and politics.

In addition to his ethnographic research, Pinello also analyzes how lower court interpretations of the 2013 Supreme Court case UNITED STATES V. WINDSOR set the stage for OBERGEFELL V. HODGES. It is in this analysis that Pinello shows how notoriously anti-gay Justice Antonin Scalia’s dissent in WINDSOR backfired in spectacular fashion. Pinello finds that Scalia’s dissenting opinion, which articulates how the logic of WINDSOR can be used to strike state laws banning same-sex marriage, was used by 65 percent of “federal trial-court dispositions that found a marriage right for same-sex couples” (p. 237). In addition to the intriguing role Scalia’s dissent played in lower court decisions supporting a right to marry, Pinello also debunks the claim made in Chief Justice Roberts’ dissent in OBERGEFELL that those who supported bans on same-sex marriage were not motivated by animus towards same-sex couples. Pinello expertly eviscerates this argument through the language of proponents of same-sex marriage bans, most notably the President of Ohio’s Citizens for Community Values, Phil Buress. It is difficult to see how leaders like Buress were motivated by anything other than animus towards same-sex couples after reading Buress’s justification for denying the rights and benefits of marriage to same-sex couples in the concluding chapter of Pinello’s book.

THE EROSION OF TRIBAL POWER: THE SUPREME COURT’S SILENT REVOLUTION

Vol. 28 No. 4 (July 2018) pp. 52-55

THE EROSION OF TRIBAL POWER: THE SUPREME COURT’S SILENT REVOLUTION, by Dewi Ioan Ball. University of Oklahoma Press, 2016. 400pp. Hardcover $39.95. ISBN: 978-0-8061-5565-4.

Reviewed by Rebecca A. Reid, Department of Political Science, University of Texas at El Paso. Email: rareid@utep.edu

The analysis of Supreme Court influence over indigenous sovereignty by Welsh historian Dewi Ioan Ball offers a new perspective into indigenous case history. Ball argues that the Supreme Court “precipitated the erosion of the Indian sovereignty doctrine” (p. 5) by gradually replacing the doctrine with an “integrationist” ideological trend that increasingly allowed state law onto reservations and ended tribal territorial sovereignty over non-Indians in criminal, civil, and taxation areas. Ball asserts that the “integrationist trend” began in 1959 when the Court starts to conceptualize conflicts between tribes and states not as tribes versus states but rather as tribes versus the federal government, encompassing indigenous interests against states (p. 32). This ideological shift is apparent in WILLIAMS V. LEE (1959) which created the infringement test. This test was later interpreted to imply that state law exists on reservations unless it infringes upon tribal governance, narrowly defined (p. 41). While cases between 1959 and 1973 reveal ambivalent court discussions, consistently debating between the sovereignty doctrine and “integrationist” interpretation that tribal powers rest at the hands of Congress, Ball notes that WILLIAMS V. LEE marks the “foundation” of the upcoming “silent revolution” (p. 6). Namely, he argues that the infringement test created the legal space for future Courts — specifically the Supreme Court in the 1970s — to initiate the “silent revolution.” This revolution, occurring between 1973-2001, is marked by the Court’s increasing reliance upon the assumption that tribal authority over non-Indians existed only when Congress legislated it. This framework led the Court to increasingly rule in favor of state powers rather than tribal authority and marked the end of Court reliance of the tribal sovereignty doctrine to determine cases. By 1989 in taxation cases and 2001 in civil cases, the Court “cleverly” generated a “new legal history” that eradicated tribal sovereignty over non-Indians on Indian lands (p. 110).

This argument is neatly laid out over the first half of the book. Ball’s thick descriptions are lucid and enlightening as he traces the evolution of the Court and individual justices as they wrestle with the alternative legal interpretations and disparate precedents. The level of detail and nuance offered is made possible by Ball’s impressive archival research on justice notes and correspondences from 1959-2001 in addition to a handful of cases decided between 2001 and 2015. Ball further includes oral arguments and private papers of seven justices: Harry A. Blackmun, Thurgood Marshall, William J. Brennan, William O. Douglas, Hugo Lafayette Black, Lewis Powell, and Chief Justice Earl Warren. These sources enable readers follow the ideological battles across the justices and trace their ideologies across cases. These primary sources further highlight the messiness of the deliberations along with individual justices’ desires and perspectives. For example, some justices held that the sovereignty doctrine was “not strong enough to oust state law” from reservations while congressional intent was deemed more effective to prevent state intrusion. For these justices, reliance on the integrationist approach was necessary to ensure tribal authority. In contrast, other justices found tribal sovereignty irrelevant (for example, [*53] see pp. 86-88). In addition, the texts provide insights into the justices’ preference for consistency, their desire to determine cases narrowly so as to avoid broad language that would be inappropriately applied in future cases, and the impact of case facts that would lead particular justices to vote with a majority that seemingly contradicted his/her legal and ideological preference. Ball excels at presenting a glimpse into judicial debates and decision making at the individual level.

The second half of the book discusses the impact of this revolution on Indigenous Peoples. Ball’s discussion on how the Court’s jurisprudence impacted indigenous litigation strategies and attempts to avoid having cases heard by the Supreme Court is particularly notable. Ball is one of the few authors to explicitly discuss this crucial nexus in this context, so this chapter was unique and enlightening. Ball focuses primarily on Senate Bill 578 and the responses to its demise, such as the Tribal Law and Order Act of 2010 and Violence Against Women Reauthorization Act of 2013. The in-depth focus allows the reader to understand how complicated and difficult indigenous rights advocacy is, as well as places the Court within the larger political context. The final chapters similarly reflect on how court jurisprudence has affected Indigenous Peoples’ ability to generate revenue, protect and provide for their members, and secure their cultural identities.

This book excels at offering an in-depth look at judicial deliberations that is accessible for general, lay audiences. Ball makes no assumptions about the reader’s understanding of indigenous law or courts and thus avoids jargon, explains judicial processes, and makes explicit the implications of each argument. Hence, this book is an accessible introduction to indigenous law in the American Supreme Court. Such a book could be easily used in academic settings at the undergraduate or graduate levels.

ETHICS AND ACCOUNTABILITY ON THE U.S. SUPREME COURT: AN ANALYSIS OF RECUSAL PRACTICES

Vol. 28 No. 4 (July 2018) pp. 45-51

ETHICS AND ACCOUNTABILITY ON THE U.S. SUPREME COURT: AN ANALYSIS OF RECUSAL PRACTICES, by Robert J. Hume. Albany, NY: State University of New York Press, 2017. 204pp. Paper $20.95. ISBN:  9781438466965.

Reviewed by Ryan C. Black, Department of Political Science, Michigan State University. Email: rcblack@msu.edu.

Scholars of the U.S. Supreme Court commonly observe that one of the most important powers of the Court is its near-universal control over its docket. As the title to H.W. Perry’s seminal volume on agenda-setting reminds us (1991), the Court has the power to decide what it will decide. In ETHICS AND ACCOUNTABILITY ON THE U.S. SUPREME COURT, Robert Hume contends that the decision to recuse (or not) from a case provides Supreme Court justices with even more discretion than is commonly acknowledged. This book is ambitious in that it seeks “to penetrate the myths surrounding recusals by studying their causes and consequences systematically” (p. 4). Hume’s efforts are overwhelmingly successful and the result is a compact and accessible text that significantly enhances our understanding of an aspect of decision making that lands in the scholarly sweet spot of being really important but woefully understudied.

As a preliminary matter, Hume makes a persuasive case for why recusal is worthy of scholarly attention. First, the identity of who votes in cases has profound implications for both the disposition of cases and the resulting content of law. When a justice sits out from a case, what was once a comfortable majority might become more tenuous. Secondly, this dynamic is especially important at the agenda-setting stage, where the Court’s “Rule of Four” requires at least four votes – out of nine – to grant review to a petition. This bar does not lower in the absence of one (or more) justice. Third, beyond individual cases or petitions, discretionary recusals provide a uniquely clear window into how justices and the Court seek to balance a number of competing interests such as institutional legitimacy and fairness versus the desire to set legal policy.

Chapter 1 combines a pithy discussion of a handful of salient recusal decisions (or non-decisions) with novel empirical data on media coverage to bring recusal novices up to speed. Prior to the 1970s, the limited amount of editorial commentary on recusals opposed their usage for concern that their usage would create administrative problems for the Court (e.g., evenly-divided courts). Discussion of Judge Clement Haynsworth’s failure to recuse himself as a circuit court judge provided some of the first fodder for calling for more usage of recusals. Around the same time, then Associate Justice William Rehnquist found himself in the editorial crosshairs over his non-recusal in a trio of cases involving the Nixon administration while he was Assistant Attorney General. This culminated in what was the first public statement issued by a justice defending their participation in case.

Since the 1970s there have been two salient flare-ups concerning recusal decisions. The first, in 2004, involved Justice Antonin Scalia issuing a statement justifying his participation in a case involving Vice President Dick Cheney after it was revealed that Scalia had spent a weekend duck hunting with a group of individuals that included Cheney. Quick (and interesting) tangent: Hume reports on the existence of earlier, arguably more egregious, instances of cross-branch fraternization during the 20th century that were previously unknown to this reviewer. Justices Robert Jackson and Byron White vacationed with President Franklin Roosevelt and Attorney General Bobby Kennedy, respectively, while cases involving their administrations were pending before the Court (p. 5-6).

The second recusal flare-up took place when the Court was poised to review the constitutionality [*46] of the Affordable Care Act. In this case, Justice Elena Kagan’s participation was criticized by some, given her role as the Solicitor General under President Obama (though Kagan maintains that she was uninvolved in related discussions). Similarly, Justice Clarence Thomas’ participation was scrutinized not for his behavior, but rather that of his wife, Ginny Thomas, who was a vocal Obamacare opponent.

SUPREME COURT EXPANSION OF PRESIDENTIAL POWER: UNCONSTITUTIONAL LEANINGS

Vol. 28 No. 4 (July 2018) pp. 42-44

SUPREME COURT EXPANSION OF PRESIDENTIAL POWER: UNCONSTITUTIONAL LEANINGS, by Louis Fisher. Lawrence, Kansas: University Press of Kansas, 2017. 352pp. Cloth $39.95. ISBN: 978-0-7006-2467-6.

Reviewed by Michael A. Zilis, Department of Political Science, University of Kentucky. Email: michael.zilis@uky.edu.

This past spring, during oral argument in TRUMP V. HAWAII (2018), Justice Elena Kagan raised the hypothetical of an “out-of-the-box kind of President,” an avowed anti-Semite who bans immigration from Israel. What are the limits, Kagan asked, to the president’s immigration authority? Notably, the question appears to fly in the face of a modern Supreme Court that “regularly idealizes the President as specially equipped to act responsibly and competently in external affairs” (p. 309). This idea – that the Supreme Court has improperly ceded constitutional authority to the executive in foreign affairs – provides the central theme of Louis Fisher’s SUPREME COURT EXPANSION OF PRESIDENTIAL POWER: UNCONSTITUTIONAL LEANINGS.

The book reviews the historical and legal record concerning executive power and Fisher covers a wide swath of territory. He devotes the initial chapters to analyzing separation of powers principles as well as precedents from the 18th and 19th centuries, arguing forcefully that the Framers intended for the executive and legislature to share power in the conduct of foreign affairs. Even Lincoln, who so aggressively used executive authority during the Civil War, recognized basic limitations. During THE PRIZE CASES (1863), his administration argued that the right to initiate a conflict belonged exclusively to Congress. But Fisher contends that, decades later, a fundamental shift occurred. Reviewing in detail the conduct of every administration since World War II, he finds presidents becoming more aggressive in their assertion of plenary foreign affairs power. He also expresses alarm about a Court that has become willing to accede. In each chapter, Fisher nicely blends a review of the historical record by examining the major actions of the executive branch with analysis of the most important case law.

The heart of Fisher’s critique points to the Supreme Court’s careless use of dicta in its opinions, which has compounded presidential authority over time. The primary object of this sloppiness is UNITED STATES V. CURTISS-WRIGHT EXPORT CORPORATION (1936). The opinion made passing reference to the president as the “sole organ” of the country in international affairs and although it was not central to CURTISS-WRIGHT’s resolution, the sole-organ doctrine featured prominently in subsequent cases. The executive branch, Fisher argues, bears some responsibility for the Court’s overreliance on the doctrine, since presidents insistently cited the CURTISS-WRIGHT dicta time and again. But the justices also erred. By the end of the 20th century, the Supreme Court accepted the misguided proposition that CURTISS-WRIGHT established plenary executive power in foreign affairs, opening the door to a host of presidential misjudgments from Vietnam to the War on Terror.

One of the book’s most interesting contributions concerns how legal errors and presidential misrepresentations shaped U.S. foreign affairs. The sole-organ doctrine provides the prime example. Not only did the Court come to accept dicta as a central legal precept, but the CURTISS-WRIGHT opinion itself misread a John Marshall speech that referenced the idea. Fisher argues that when the speech is read in its entirety, it becomes clear that Marshall did not believe the executive wields plenary foreign affairs power; rather, Marshall was defending the president’s ability to carry out a treaty provision. In other words, the president acts as the sole organ only for the purposes of [*43] implementation. The CURTISS-WRIGHT Court obscured this nuance.

FREE SPEECH ON CAMPUS

Vol. 28 No. 4 (July 2018) pp. 39-41

FREE SPEECH ON CAMPUS, by Erwin Chemerinsky and Howard Gillman. New Haven, CT: Yale University Press, 2017. 216 pp. Cloth $26.00. ISBN: 978-0-300-22656-0.

Reviewed by Eric T. Kasper, Department of Political Science, University of Wisconsin-Eau Claire. Email: kasperet@uwec.edu.

Today there are frequent news stories about free speech conflicts on college campuses. Indeed, whether it is a faculty member who is disciplined for making controversial comments online, students who are reprimanded for protesting on campus, or the additional security measures universities must take to accommodate a provocative speaker, issues of free speech conflicts on college campuses seem to arise on a regular basis. How to protect the freedom of expression while also safeguarding the learning environment and other university functions is something that needs to be addressed by every college and university, public or private.

Given these facts, Chemerinsky and Gillman’s FREE SPEECH ON CAMPUS is a welcome book. Although they begin by reminding us that these free speech battles are nothing new – “controversies over freedom of speech on college campuses have existed as long as there have been college campuses” (p. ix) – they address the unique challenges that this issue presents in the contemporary age.
The book recognizes that disputes over these issues often polarize into two camps: those who think college students today are being “coddled” by a politically correct culture and those who appear to devalue the freedom of expression. Chemerinsky and Gillman think both poles of this debate are misplaced, and they offer a middle ground to simultaneously protect freedom of expression and the learning experiences of students from marginalized groups. Their central thesis is that “all ideas and views should be able to be expressed on college campuses, no matter how offensive or how uncomfortable they make people feel. But there are steps that campuses can and should take to create inclusive communities where all students feel protected” (p. 19). Although the authors acknowledge that the First Amendment applies solely to public colleges and universities, they also advocate that private campuses should adhere to the same standards (p. xi).

Chemerinsky and Gillman wrote the book after their experiences teaching a freshman seminar on the freedom of speech. They found that between the students in their class and a 2015 Yale survey of college students, students today do not support the freedom of expression fully because they fail to make the connection with this right historically protecting vulnerable populations (pp. 9-10). While this may be true, this premise of their book could be supported by more data than one survey and anecdotes from their class. Nevertheless, assuming that there are students, faculty, and administrators who have less zeal for the freedom of expression than the authors – who classify themselves as “strong free speech advocates” (p. 12) – they lay out the case for vigorously protecting this right, even if it includes protecting some forms of hate speech.

Chapter two explains the importance of the freedom of speech, including how it relates to ensuring the freedom of thought, its relation to democratic self-government, and the problems of censorship. The authors make the point that historically, “censorship has always been on the side of authoritarianism, conformity, ignorance, and the status quo, and advocates for free speech have always been on the side of making societies more democratic, more diverse, more tolerant, more educated, and more open to progress” (p. 27). They then go on to trace the troubled earlier history of the freedom of speech in the U.S., showing how it was not until the last half century that the right received the level of the protection it has now. They provide a comprehensive history of this progression in American politics and in the U.S. Supreme Court, although this background concludes in the early 1970s.

Chapter three is devoted to a history of academic freedom. Chemerinsky and Gillman start by [*40] sketching how historically, higher education was founded much more on indoctrination than free thought. They then explore how this slowly changed, due to organizations such as the Royal Society of London for Improving Knowledge and the American Association of University Professors, and they discuss the important role of the Berkeley Free Speech Movement. Likewise, they describe how the U.S. Supreme Court, in cases like KEYISHIAN V. BOARD OF REGENTS (1967), enshrined academic freedom into the First Amendment’s protections. Where they could go a step farther here, though, is in exploring more recent Court decisions that have largely characterized academic freedom as an institutional right rather than as an individual right.