THE PRESIDENT AND THE SUPREME COURT: GOING PUBLIC ON JUDICIAL DECISIONS FROM WASHINGTON TO TRUMP

Vol. 30 No. 9 (October 2020) pp. 141-148

THE PRESIDENT AND THE SUPREME COURT: GOING PUBLIC ON JUDICIAL DECISIONS FROM WASHINGTON TO TRUMP, by Paul M. Collins, Jr. and Matthew Eshbaugh-Soha. Cambridge University Press, 2019. 287pp. Cloth $110.00. ISBN: 9781108498487. Paper $23.76. ISBN: 978-1108723893.

Reviewed by Elizabeth Lane, Department of Political Science, Louisiana State University. Email: elane8@lsu.edu.

“Do you get the impression that the Supreme Court doesn’t like me?” This was one of a number of tweets President Trump made following the Supreme Court’s June 18, 2020, decision in DHS V. REGENTS OF THE UNIVERSITY OF CALIFORNIA (2020) , adding to a growing number of comments on the Court from his first term as president. In 2020, presidential comments on the Court feel all too common, but beyond a few notable pieces on the president going public during Supreme Court confirmation battles (Cameron and Park 2011; Johnson and Roberts 2004), it is something scholars know very little about despite the fact that every president since Jackson has taken public positions on Supreme Court cases (p. 2).

The motivation and theoretical foundation of THE PRESIDENT AND THE SUPREME COURT: GOING PUBLIC ON JUDICIAL DECISIONS FROM WASHINGTON TO TRUMP is very clear. Collins and Eshbaugh-Soha ambitiously seek to explain why presidents go public about Supreme Court cases, the manner in which they do so, and whether or not they are influential in their pursuits. The authors successfully accomplish their lofty goals by the end of the book. They clearly express why presidents decide to talk about the Court, but the answer to if they are successful is slightly more nuanced. Collins and Eshbaugh-Soha lay out their theoretical argument in Chapter 1, which answers the “why” question. The authors contend that presidents go public on decided cases to promote (1) reelection, (2) policy goals, and (3) historical legacies. These objectives then determine the timing, tone, topic, venue (i.e., written or spoken), and audience (i.e., Congress, media, or public) in subsequent chapters of the text. Collins and Eshbaugh-Soha also spend time discussing the significant normative consequences of a president’s decision to go public. More specifically, they acknowledge that the president’s decision to go public violates the popularly held norm of judicial independence yet adheres to and promotes a broad view of coordinate construction -- the idea that the president, in addition to the Court, has a responsibility to help define constitutional understanding.

Before moving forward, it is important to explain Collins and Eshbaugh-Soha’s novel dataset on presidential comments on Supreme Court cases. They divide these data in two ways. The first is by time period. The majority of the book focuses on the modern presidency (1953 - 2016). They also reserve a chapter for the historical era (1719 - 1952) as there was not much action on this topic back then. Next, they divide the data by comments made on pending and decided cases. The book opens with a story from April 2, 2012. President Obama publicly commented on NFIB V. SEBELIUS (2012), a case the Court just heard in late March and did not release [*142] its decision until June 28, 2012. This vignette paints a vivid and interesting picture of a president attempting to influence a Supreme Court case outcome. However, the reader soon learns this is a relatively uncommon occurrence. In fact, in the modern era, presidents have only spoken about pending cases on 54 occasions, an extremely rare occurrence if you consider the thousands of Supreme Court cases that they had the opportunity to speak about.

Chapter 2 details presidents’ decisions to go public on the few occasions before the Supreme Court releases a decision. The authors point out that the primary reason going public on pending cases is so rare is because it comes at great risk of criticism for overstepping constitutional boundaries and thus encroaching on judicial independence. The benefits of going public on undecided cases all relate to policy and election goals via position-taking to send signals that certain issues are important. That being said, there does not seem to be a clear strategy across presidents for engaging in this type of behavior. Although with so few instances, it is hard to say. Bar charts on position-taking by presidents on pending cases reveal that President Obama went public more than any other president during his two terms in office. He often took a strong policy position closely related to his policy priorities, but most of these statements were unplanned remarks or answers to questions from reporters. President Clinton who trails only Obama in these types of remarks also linked pending decisions to his policy priorities. However these were always strategically prepared written or spoken statements (see Figures 2.1 and 2.3 - 2.5). All in all, the idea and story of the chapter end up being more interesting than the actual data bear out. It would have been informative to investigate whether there is systematic evidence of the backlash faced by presidents for these comments. Is it riskier because it results in more criticism for presidents to speak on pending decisions when the Court is ideologically distant from them? Or, do they only engage in this activity when the policy they are speaking out on has wide public support?

THE LIVING PRESIDENCY: AN ORIGINALIST ARGUMENT AGAINST ITS EVER-EXPANDING POWERS

Vol. 30 No. 9 (October 2020) pp. 135-140

THE LIVING PRESIDENCY: AN ORIGINALIST ARGUMENT AGAINST ITS EVER-EXPANDING POWERS, by Saikrishna Bangalore Prakash. Cambridge, MA: The Belknap Press of Harvard University Press, 2020. 337pp. Hardcover $29.95. ISBN: 9780674987982.

Reviewed by Allen C. Sumrall, Department of Government & School of Law, University of Texas at Austin. Email: asumrall@utexas.edu.

In THE LIVING PRESIDENCY: AN ORIGINALIST ARGUMENT AGAINST ITS EVER-EXPANDING POWERS, Saikrishna Prakash takes on a topic indelibly fascinating and vexing to political scientists and legal scholars alike: the modern presidency. Like the other institutions of government—not to mention the entire American polity and constitutional order—the presidency has changed over time. Today, the president sits atop an enormous executive apparatus that controls large arenas of federal policymaking. To many, it appears that a government designed to be centered around the legislature is now focused around the presidency with Congress there to simply work out the details of the president’s policy agenda. These concerns are particularly acute with President Trump, who has made clear his disdain for the strong but limited constitutional presidency (Muirhead & Tulis 2020, p. 341; Nelson 2014; Thach 1969).

Prakash contributes to an established body of literature on the topic (Skowronek 2020; 1997; Suri 2017; Nelson 2014; Kernell 1997; Neustadt 1991; Tulis 1987; Schlesinger 1974). Though much of the book is descriptive, Prakash offers two contributions, one theoretical, the other prescriptive or normative. His theoretical contribution is his attribution of the modern presidency to so-called “living constitutionalists,” who Prakash seeks to discredit, therefore vindicating originalism. The book ends with his second contribution: a detailed list of ways in which Congress or the courts could begin to rein in the modern presidency. Some are originalist, but some are not. Despite the title of the book, Prakash provides little justification for why originalism, or an original understanding of the Constitution, should be favored over any other method of cabining the modern presidency. Ultimately, though Prakash’s theoretical contribution is plagued with difficulties, his normative recommendations are worthy of real consideration and debate. Many of the policy recommendations actually demonstrate the shortcomings of the theoretical description of the modern presidency, but in ways that point to both a stronger theory and the ways we can solve the constitutional dilemmas the book highlights.

Throughout American history, presidents have expanded their power and status to encroach on the prerogatives of Congress and the courts. As a result, what to many resembles the normal condition of constitutional politics is actually a sharp departure from the Founders’ presidency. Prakash correctly explains that the Constitution’s framers did “not fashion a Constitution that authorized presidents to amend and expand their constitutional office” (p. 1). A presidency with “no fixed limits” is cause for alarm—a presidency without limits is no presidency at all, and we no longer have a constitutional system of government, but a monarch or imperial despot (p. 3). [*136]

In Prakash’s telling, we are at no immediate risk of losing all constraints on presidential power. Nevertheless, he observes that the modern presidency is no longer subject to the same legal or political constraints it once was. The “living presidency,” championed and applauded by living constitutionalists, takes advantage of its unique position as head of government and head of party, a need to keep campaign promises, and as the only person who can claim a mandate on behalf of the entire country to brush constitutional limits aside in favor of expediently solving the problems of the day. In other words, Hamilton’s energetic executive has proved too energetic.

PROHIBITION, THE CONSTITUTION, AND STATES’ RIGHTS

Vol. 30 No. 9 (October 2020) pp. 132 - 134

PROHIBITION, THE CONSTITUTION, AND STATES’ RIGHTS, by Sean Beienburg. Chicago: The University of Chicago Press, 2019. 312pp. Cloth $105.00. ISBN: 9780226631943. Paper $35.00. ISBN 9780226632131. E-Book $10.00 to $35.00. ISBN: 9780226632278.

Reviewed by Paul E. Herron, Department of Political Science, Providence College. Email: pherron@providence.edu.

In PROHIBITION, THE CONSTITUTION, AND STATES’ RIGHTS, Sean Beienburg offers a detailed analysis of the adoption of the Eighteenth Amendment, debates over its enforcement, and ultimately its repeal. This outstanding book is built on an enormous amount of original research into how state-level governments and politicians managed the politics of prohibition. Scholars of American constitutionalism often appear trapped by both federal and judicial supremacy. If the U.S. Constitution is the ultimate expression of the fundamental law and the Supreme Court has the exclusive authority to interpret it, then the study of American constitutionalism is necessarily the study of jurisprudence. The onerous requirements contained in Article V exacerbate the problem because there has been so little textual change to the document. Amy Bridges, John Dinan, Sandy Levinson, Alan Tarr, Robinson Woodward-Burns, Emily Zackin and others (myself included) have turned to state constitutions, where the more flexible amendment procedures reveal an active and ongoing debate over what should be contained in the fundamental law. Beienburg too has done some excellent work on state constitutions, but here he focuses on state and regional debates over a national constitutional issue, which expands the scholarly view of American constitutionalism beyond the courts and Washington, D.C. His account also enriches the study of American political development and reminds us of the many ways in which the principles of federalism, states’ rights, and constitutional theory interact, harmonize, and clash.

The book begins by noting the unexpected constitutional arguments surrounding the contemporary debate over legalization of marijuana, with some conservatives pushing national power and some liberals responding by invoking the Tenth Amendment and states’ rights. This is an effective frame for why national alcohol prohibition is still relevant, but Beienburg’s meticulous examination of state legislative journals and newspapers reveals an overlooked venue of American constitutional debate that is connected to much larger issues in contemporary politics. He notes that prohibition had a far-reaching effect that “altered not only the relationship between the states and federal government but also that between the government and the individual” (p. 3). Investigation into these debates is so fruitful for those seeking to better understand constitutional and political history because, “the constitutional politics of Prohibition were about politics, not just judicial filings and rulings… unlike our current-day politics, in which non-judges cede constitutional argument to courts in a realm of judicial exclusivity and judicial supremacy, noncourt actors took constitutional politics seriously… [and] for all their disagreement, most ‘wets’ resisting Prohibition and ‘drys’ backing it shared a remarkably consistent constitutional vision that enabled such meaningful dialogue” (pp. 4-5). The debates that Beienburg presents are more substantive than the current partisan discourse that relies on the courts to resolve differences. [*133]

Chapters two and three outline the fraught relationship between Chapter 2, “Prohibition and Liberalism” and Chapter 3, “Prohibition and Federalism”. Beienburg argues that the effort to outlaw alcohol “exposed two related fault lines in American political thought: the proper role of individual rights and choice against government regulation, on the one hand, and the proper allocation of state and federal power, on the other” (p. 8). He does an excellent job at setting up the debate that follows and explains how different groups formed sometimes surprising alliances in support of prohibition because they believed it would cure a wide variety of societal ills. Some thought elimination of drunkenness would help minimize poverty and domestic violence. Others argued it would actually increase personal and societal freedom and drive participation in civic and political life. Racists saw an opportunity to exert more control over African Americans and immigrants. At the same time, some Black intellectuals hoped that increased federal capacity might enable actual enforcement of the Reconstruction Amendments. As a scholar of southern politics, I found Beienburg’s account of the South’s “overwhelming embrace of prohibition” to be quite effective in displaying the contradictory interests and the inevitable contests that would follow. If white supremacists and southern Blacks both supported a policy for contradictory reasons, how would implementation ever work? One of the great virtues of these opening chapters is that Beienburg offers a smart and concise introduction to the foundational themes of American political thought that were tested by the realities of criminalizing alcohol.

CONSTITUTIONAL DYSFUNCTION ON TRIAL: CONGRESSIONAL LAWSUITS AND THE SEPARATION OF POWERS

Vol. 30 No. 8 (September 2020) pp. 128 - 131

CONSTITUTIONAL DYSFUNCTION ON TRIAL: CONGRESSIONAL LAWSUITS AND THE SEPARATION OF POWERS, by Jasmine Farrier. Ithaca: Cornell University Press, 2019. 188pp. Hardcover: $115.00. ISBN: 1-501-702505. Paper $29.95. ISBN: 1-501-74710-X.

Reviewed by Ellen M. Key, Department of Government and Justice Studies, Appalachian State University. Email: keyem@appstate.edu.

What is the proper role of the judiciary in settling executive/legislative separation of powers disputes? That is the important question Jasmine Farrier tackles in CONSTITUTIONAL DYSFUNCTION ON TRIAL: CONGRESSIONAL LAWSUITS AND THE SEPARATION OF POWERS. Specifically, Farrier contrasts the disposition of private litigation with the treatment of member suits to see if the Court is willing to be used as a vehicle through which Congress can curtail executive power, and sometimes even reign in Congress itself.

In a system designed to let ambition counter ambition, each branch has an incentive to expand their power and institutional tools to defend itself from encroachment from other branches. Whether those tools are used, however, is left to the discretion of those who occupy political office. Frequently, members of Congress turn to the judiciary to resolve separation of powers disputes rather than use the legislative options at their disposal. Farrier argues, the existence of these member suits is a symptom of an unbalanced institutional system. Moreover, the choice to seek relief from the judicial branch rather than Congress itself is unwise. While the courts can offer short-term relief, they are ill-suited to provide long-term solutions to separation of powers issues.

Farrier bases her argument on both practical and theoretical grounds. Practically speaking courts have several options when faced with member suits: dismiss the case on standing or justiciability grounds, grant the case and side with the nonmember party, or grant the case and side with the member. As Farrier argues in the introduction, concern with maintaining their own institutional legitimacy makes the first option very attractive to judges and justices. Relative to private litigants, members have a difficult time demonstrating standing. Even if they are found to have standing, cases may still be dismissed as political questions better addressed by another branch of government. If a question is found to be justiciable, the doctrine of equitable abstention may still be used to keep a case from being heard if parties have not exhausted all other avenues for relief. Even if they are able to successfully cross all those hurdles and get a case granted, it does not mean the member-litigant will prevail.

These practical concerns intersect with the theoretical argument about the proper role of the judiciary in settling separation of powers disputes. Turning to the judiciary is frequently the only avenue for redress available to private litigants, but the same is not true for Congress. Members should, Farrier explains, work within their institution to vigorously defend their power rather than enlisting the courts to fight the battle in their stead. Pushing issues to the courts rather than resolving them “in house” leads to an imbalance of power and an outsized role for the judiciary, further exacerbating the power imbalance. [*129]

The book is organized into three substantive areas (war powers, the legislative process, and unilateral executive action), with two chapters per section comparing and contrasting first private litigation and then congressional litigation on the respective topics. Although the general structure is to discuss private litigation and member suits in separate chapters, this separation is not always maintained. For instance, the first ever member suit, MITCHELL V. LAIRD (1973), and the subsequence case of HOLTZMAN V. SCHLESINGER (1973) are discussed alongside private litigation in Chapter 1. This comingling makes it more difficult for the reader to identify patterns in the courts’ jurisprudence regarding private and congressional litigation, but Farrier provides enough summary points to help clarify the argument.

REPUGNANT LAWS: JUDICIAL REVIEW OF ACTS OF CONGRESS FROM THE FOUNDING TO THE PRESENT

Vol. 30 No. 8 (September 2020) pp. 124 - 127

REPUGNANT LAWS: JUDICIAL REVIEW OF ACTS OF CONGRESS FROM THE FOUNDING TO THE PRESENT, by Keith E. Whittington. Lawrence, KS: University Press of Kansas, 2019. 432pp. Cloth $39.95. ISBN: 978-0-7006-2779-0.

Reviewed by Andrew J. O’Geen, Department of Political Science, Davidson College. Email: anogeen@davidson.edu.

It will come as no surprise to those who are already familiar with his extensive body of work, but Keith Whittington has written an excellent book. In it, he canvases the entire corpus of U.S. Supreme Court opinions in which the Court reviews the constitutionality of a federal statute, some 1,308 cases through October term 2017. Whittington’s ultimate goal is a more nuanced and more complete understanding of the Court’s use of the powerful tool of judicial review. First, the book is an impressive effort in data collection and description. Whittington does well to use these data to show how different trends in the Court’s use of judicial review have evolved and changed over time and how these trends might relate to other important factors in American politics. Covering so much historical ground, this endeavor on its own would make for an interesting book. However, Whittington does more than just describe a central aspect of the Court’s work. He also seeks to situate this description squarely within the extensive literature that has grown largely out of Dahl’s (1957) seminal article on the Court as a national policymaker. The result is an updated and slightly more nuanced take on the Court’s role as an institutional actor that operates “within democratic politics, not simply as a constitutional guardian standing outside of democratic politics” (p. 314). His success in both efforts is a testament to the quality of both the writing and the scholarship in REPUGNANT LAWS.

The overarching structure of the book is straightforward and easy to follow. Whittington begins with a chapter outlining the questions and perspective that shape the book. This chapter does an excellent job of orienting the reader toward the larger task ahead and Whittington does well to place the book into conversation with foundational work on the Court’s power of judicial review including that of Dahl and Bickel (1962). Whittington then divides the Court’s history into three primary eras: the Founding through the Civil War, the Civil War through World War I, and World War I through the present. The individual chapters of the book dive deeper into specific periods within each of these eras. This periodization effectively contextualizes and complicates the Court’s approach to evaluating federal statutes and provides a useful structure through which to understand the Court’s role in shaping federal law and policy. Finally, Whittington does the impatient reader a tremendous favor by ending Chapter 1 with a list of seven themes and conclusions that are more fully developed in the ensuing chapters.

In Chapter 2, Whittington offers a historical overview of judicial review before the Founding. He first shows that colonial Americans – at least elites – understood that constitutions and the law could (and should) place limits on the power and authority of governments. He goes on to show that state courts were practicing an early form of judicial review, mostly centered around challenges to judicial power. The primary point is that the foundations for judicial review – as it would come to [*125] be practiced in the United States – were in place before the country was founded and were rooted in the basic functioning and understanding of the English and early colonial legal systems. Further, the supremacy of the federal constitution – enforced by federal judges – over state courts, was a fundamental concern of many of the founders.

Chapter 3 represents the start of the main body of the book and begins with Whittington challenging what he refers to as the "standard story" of judicial review before the Civil War. As he puts it, "MARBURY was not the big bang, and DRED SCOTT was not a bolt from the blue” (p. 61). To be sure, both MARBURY and DRED SCOTT were critical moments in the history of the Court’s practice of judicial review. But, through a more comprehensive look at all the cases evaluating the constitutionality of federal statutes, Whittington shows how “the process of judicial review was built up through the resolution of more mundane cases in which the political stakes were relatively low” (p. 117), with the Court focused on both the process of building and reinforcing the power of the federal government and building and reinforcing the power of the judicial branch. Herein also, we see an early example of what becomes a consistent theme throughout the book. The beliefs and prejudices of any particular historical moment – particularly, in this era, around the issue of slavery – are reflected in the justices of the Court and, through them, in the decisions, doctrines, and policies that emanate from that Court in the form of opinions and case resolutions.

THE TRANSFORMATION OF TITLE IX: REGULATING GENDER EQUALITY IN EDUCATION

Vol. 30 No. 8 (September 2020) pp. 120-123

THE TRANSFORMATION OF TITLE IX: REGULATING GENDER EQUALITY IN EDUCATION, by R. Shep Melnick. Washington DC: Brookings Institution Press, 2018. 325 pp. Paperback $35.99. ISBN: 9780815732228. eBook ISBN: 9780815732402.

Reviewed by Virginia A. Hettinger, Department of Political Science, The University of Connecticut. Email: virginia.hettinger@uconn.edu.

THE TRANSFORMATION OF TITLE IX provides a comprehensive description of Title IX. The book discusses Title IX enforcement in athletics, sexual-harassment, and gender identity, providing an in-depth understanding of the role of the Office for Civil Rights (OCR) in shaping and expanding how and when Title IX governs different aspects of education. Much of the book is descriptive but the core argument is that the Office for Civil Rights within the U.S. Department of Education has neglected to follow the provisions of the Administrative Procedure Act (APA) and instead relied on Dear Colleague Letters to expand the role and reach of Title IX. This practice, coupled with judicial branch cooperation and interpretation has led to a “convoluted policy making process” that leaves OCR and the enforcement of Title IX vulnerable to shifting partisan priorities (p. ix).

Melnick’s argument is grounded in a detailed history beginning with the debate over and passage of Title IX in 1971 and 1972. Scholars of the bureaucracy, administrative law, sex discrimination, and women in politics will find much valuable and eye-opening information here. This book had the potential to be a valuable resource in classes on those same topics. Unfortunately, the tone of the book is sufficiently hostile at times that it would be difficult to assign in any class setting.

In the first three chapters. Melnick provides three short examples of how OCR has interpreted and enforced Title IX. He identifies five defining elements of this policy area. They are (1) the growth of statutory, judicial, and bureaucratic tools that define the “civil rights state”; (2) institutional “leapfrogging” between the bureaucracy and federal courts; (3) critical distinctions between education and business; (4) The role of “rights talk”; (5) and the importance of continued progress in combating inequalities (pp. 13-21).

The next two chapters provide a history of the civil rights state beginning with the passage of the Civil Rights Act of 1964 and the challenges presented by the 1972 amendments that created Title IX. Melnick introduces the key federal agencies tasked with enforcing civil rights statutes and the role of the courts in interpreting these statutes. He also provides a few examples of times Congress has exercised control over these interpretations by overriding Supreme Court decisions. The challenges of Title IX include the language of the statute itself, the difficulty of extending mandates on racial equality to gender equality, and OCR’s limited options for enforcement.

The next four chapters examine Title IX enforcement in athletics. Even though athletics were not the primary focus of debate when Congress passed Title IX in 1972, athletics became the primary focus of OCR’s enforcement regime. Melnick [*121] notes that “Athletics is the most important area where the analogy between racial discrimination and sex discrimination breaks down” (p. 79). The result is that we have embraced separate but equal in athletics while rejecting it in other settings. This complicates efforts to define equality.

In Chapter 5, Melnick contrasts the tremendous task that Congress assigned to OCR with the relative lack of resources Congress has provided. The small size of the agency, the lack of clarity in its mandate, the limits of its enforcement powers, and Congress’s desire to overload the agency have plagued OCR from the beginning. The agency has followed the APA to promulgate rules and policies just once in its nearly fifty-year history. Since then, OCR has relied on compliance agreements with individual institutions, which then become the basis for policy interpretations that apply to all institutions through Dear Colleague Letters (DCLs). Melnick demonstrates that this practice leaves the enforcement of Title IX particularly vulnerable to shifting partisan priorities.