Vol. 34 No. 02 (March 2024) pp. 15-17

RATIONING THE CONSTITUTION: HOW JUDICIAL CAPACITY SHAPES SUPREME COURT DECISION-MAKING,Andrew Coan. Cambridge: Harvard University Press, 2019. pp. 265. Hardback $43.00. ISBN: 9780674986954.

Reviewed by Rachael Houston. Department of Political Science, Texas Christian University. Email: r.houston@tcu.edu.

In my undergraduate courses on Supreme Court judicial decision-making, I guide students through an in-depth exploration of the evolution of justices’ decision-making behavior. This educational journey commences with an introduction to the legal model, advances into the intricacies of the attitudinal model, and culminates with an in-depth examination of the strategic model. As we explore the strategic model, I underscore the pivotal role of external constraints, including the influence of public opinion and the pressures exerted by the Executive and Congress. I also shed light on internal constraints, illuminating the imperative for justices to secure support from their colleagues within the Court.

Andrew Coan's book smoothly becomes part of this academic exploration, intricately aligning with internal constraints, and simultaneously providing a constructive critique of our existing understanding of the strategic model. Coan introduces an innovative concept, “judicial capacity,” which highlights another layer of constraint that significantly influences how justices make decisions, thus shaping the outcomes of Court rulings. For undergraduate students, Coan’s book serves as an indispensable guide, presenting them with insightful case study scenarios, lucid explanations of judicial behavior models, historical and constitutional context, and real-world implications related to the concept of judicial capacity. It equips them with the essential tools to comprehend the motivations driving justices’ decision-making processes.


Vol. 34 No. 02 (March 2024) pp. 12-14

THE IMAGINED JUROR: HOW HYPOTHETICAL JURIES INFLUENCE FEDERAL PROSECUTORS, Anna Offitt. New York: New York University Press, 2022. 192pp. Cloth $89.00. ISBN: 978-1-4798-0853-3. Paper $30.00. ISBN: 978-1-4798-0854-0.

Reviewed by Anya Bernstein. University of Connecticut School of Law. Email: anya.bernstein@uconn.edu.

The right to a jury is enshrined in the United States Constitution, but these days juries are famously hard to find. A tiny fraction of lawsuits, whether civil or criminal, involve an actual jury (p. 28). Yet the idea of the jury continues to influence how lawsuits—even those that never get to a jury—proceed. Some of that influence is structural. For instance, a party seeking summary judgment in a civil lawsuit appeals to the abstract notion of a hypothetical jury: if a judge decides that no reasonable jury could find for the party’s adversary, there’s no point empaneling a jury at all. In that situation, the importance of the non-existent jury is, in some sense, written into legal standards, visible for all to see. But Anna Offit’s fascinating new study reveals that the idea of the jury plays an even more pervasive, less visible, role.

Offit, who is trained in both law and anthropology, conducted a long-term ethnography of federal prosecutors, putting in years as a participant observer in a U.S. Attorney’s office. Being socially embedded on an ongoing basis allowed her to observe the profession’s everyday: not just things she or her subjects already found notable, but the mundane interactions, the routine preparations, and the offhand comments that contribute to the flow of life on the job. Much of the evidence Offit brings to bear quotes from her many interviews and conversations, which clearly benefited from the familiarity she developed with her subjects and the trust they placed in her. Ethnography, as understood in anthropology, goes beyond short interactions into longer-term ongoing connections, creating social ties in which any given interview or conversation is embedded. The researcher continuously interacts with research subjects over time, taking part in their activities together. This double consciousness—as an insider participant but also as an outsider observer—can yield insights that are hard to achieve in other ways. It can give the researcher an intuitive, felt understanding of the logic behind her subjects’ practices, helping her see how particular choices or peculiar views make sense to those who enact them. Additionally, it can help the researcher notice patterns, practices, and conflicts that fly under even participants’ own radars (pp. 9-14). Offit returns throughout the book to discuss the ethnographic method and consider both its benefits and its limitations.


Vol. 34 No. 01 (January 2024) pp. 9-11

ACTUAL MALICE: CIVIL RIGHTS AND FREEDOM OF THE PRESS IN NEW YORK TIMES V. SULLIVAN, Samantha Barbas. Berkeley: University of California Press, 2023. 290 pp. Cloth $ 29.95. ISBN: 9780520385825.

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

In 1960, the New York Times published an advertisement, “Heed Their Rising Voices,” written by an ad hoc committee called the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. Through the advertisement, the Committee sought to expose police misconduct that occurred during a sit-in at a lunch counter in Montgomery, Alabama. The advertisement, however, contained a number of falsehoods, and, by inference but not by name, it implied that the Commissioner of Public Safety in Montgomery, Lester Bruce (L.B.) Sullivan, was responsible. Sullivan sued for libel in state court and won a $500,000 award, “the largest libel verdict in the state’s history,” according to Samantha Barbas (p. 2). Both the press and civil rights organizations regarded Sullivan’s victory as a threat to the First Amendment. Civil rights organizations feared reprisals for any criticisms they may make against governmental officials. The press was concerned that other large-sum awards might follow, which would have a “chilling effect” on the freedom of the press. The scope of such awards would prevent journalists from investigating racial conflict in the South or public officials anywhere. Should the Alabama court’s ruling stand, Justice William Brennan wrote for a unanimous Court in New York Times v. Sullivan, the nation’s commitment to “uninhibited, robust, and wide-open” debate would collapse.

Samantha Barbas, a law professor at the University of Buffalo, and a well-regarded scholar of press and speech freedoms, has written a general history of New York Times v. Sullivan. The case lends itself to an interdisciplinary approach. The legal issues are complex, but the case began over an attempt to desegregate lunch counters; Sullivan’s trial was racially segregated; and to say that the trial judge had Confederate sympathies is to put it mildly. As Barbas demonstrates, it is impossible to separate the legal issues from the civil rights movement’s focus on desegregation, integration, and political equality.

Libel is the written defamation of character. There are four kinds: blasphemous, pertaining to religious institutions or persons; obscenity, relating to moral concerns; private, involving individuals; and seditious, concerning libel against the state or state officials. Sullivan is a private libel case involving the defamation of Sullivan’s character. But the Court treated the case as part seditious libel and part private libel. In other words, the decision holds that


Vol. 34 No. 01 (January 2024) pp. 6-8

DIVERSIFYING THE COURTS: RACE, GENDER, AND JUDICIAL LEGITIMACY, Nancy Scherer. New York: New York University Press, 2023. 223 pp. Paperback $30. ISBN: 9781479818723.

Reviewed by Nancy Arrington. Department of Political Science, Cal Poly San Luis Obispo. naarring@calpoly.edu.

In Diversifying the Courts: Race, Gender, and Judicial Legitimacy, author Nancy Scherer addresses why American Presidents have sought (or not sought) to diversify the federal judiciary and then tests whether diversifying the courts has (or has not) shaped perceptions of legitimacy among the public. A key theme is what Scherer terms the “Diversity Dilemma:” if descriptive representation increases the legitimacy of those who are descriptively represented, then increases in legitimacy among women or people of color as the court diversifies are offset by decreases in legitimacy among men and white members of the public. The diversity dilemma suggests that using diversification of the court as a tool to build overall levels of judicial legitimacy among the public may be misguided.

Chapter 1 summarizes the process of diversification of the federal judiciary and addresses how the salient characteristics worthy of diversifying have changed over time. In addition, Scherer tracks the selection of women and judges of color to the US Supreme Court, US Courts of Appeals, and US District Courts from the Roosevelt through Trump presidencies.

Chapters 2 and 3 address Democratic and Republican Presidents’ stances on diversification of the judiciary. For both parties, a key focus is on building the legitimacy of the courts, but the parties diverge in the tactics for doing so. For Democratic presidents, the justification or goal of diversification has changed over time. Scherer explains that President Carter sought diversification as “a means to remedy past discrimination” (p. 27) whereas subsequent Democratic presidents have emphasized descriptive representation, the idea that political offices should generally reflect salient characteristics of the public. President Obama, by emphasizing shared experiences and judicial empathy, “is the first to rely on “descriptive/substantive representation to justify his diversity policy for federal courts” (p. 37).

In describing recent Republican Presidents’ approaches to diversity in the judiciary,


Vol. 34 No. 01 (January 2024) pp. 1-5

HIGH COURTS IN GLOBAL PERSPECTIVE: EVIDENCE, METHODOLOGIES, AND FINDINGS, Nuno Garoupa, Rebecca Gill, and Lydia Tiede. University of Virginia Press, 2021. 362 pp. Cloth $55.00. ISBN: 9780813946153.

Reviewed by Jeffrey K. Staton., Department of Political Science. Emory University. Email: jkstato@emory.edu

Garoupa, Gill, and Tiede’s High Courts in Global Perspective: Evidence, Methodologies, and Findings features a collection of essays that take stock of where the field of comparative law and courts is and where it might go. As the title suggests, these assessments are centered on scholarship concerning high courts. The authors explain their choice persuasively, though it nevertheless limits the scope of the volume as so much scholarship in comparative law and courts focuses on other courts and actors in a state’s judicial system. The editors further focus their volume on statistical analyses of high court outcomes, a choice that shifts our attention away from most of the field of comparative law. Still, the global scale of the project and the fact that many of the most important questions in the field can be fruitfully developed in the context of quantitative studies of high courts ensures that the volume still retains the flavor of a general field introduction. Fortunately, the editors provide ample citations to other field summaries, which fill in the spaces that they de-emphasize. If you teach courses on law and courts; if you conduct research on the subject; and, certainly if you advise graduate students, you should own this volume.

As strongly as I recommend the volume, I do fear that you will not find in it simple answers to the field’s most critical challenges. Just as the editors provide a compelling rationale for a robust program of comparative scholarship on law and courts, the volume’s authors together illustrate how the combination of the needed tasks ahead, and professional incentives make the production of the very scholarship that we need extremely difficult to execute. The volume points us in the direction of a solution, but the particulars of how to make this solution viable are left to future thinking. We have a good sense for where we are. We have a general vision of where we ought to go. Sorting out how to get from one point to the other is a task left to the community, which is probably as it must be.

The editors’ primary goals are to ask how courts should be studied comparatively. They search for key barriers to a vibrant comparative literature on law and courts, and they ask how the field might overcome these barriers. The editors argue that a comparative approach to law and courts is essential because several important questions