LIGHTING THE WAY: FEDERAL COURTS, CIVIL RIGHTS, AND PUBLIC POLICY

Vol. 30 No. 11 (December 2020) pp. 170-177

LIGHTING THE WAY: FEDERAL COURTS, CIVIL RIGHTS, AND PUBLIC POLICY, by Douglas Rice. Charlottesville: University of Virginia Press, 2020. 201pp. Hardcover $39.50. ISBN: 9780813943947.

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

Pop quiz, hot shot: It’s the end of the semester in your judicial politics class and, if your syllabus looks anything like mine, it means you’re covering the topic of judicial impact. Is it perhaps strange to conclude the class with a question that might render the preceding fifteen weeks moot? Absolutely, but that’s not important right now. What is important, is that Douglas Rice’s LIGHTING THE WAY has put together a nice and compact book that breathes new life into the perennially important and longstanding question of whether the federal judiciary can uniquely influence public policy. So, when Dennis Hopper calls you up and asks “what do you do?” in this increasingly absurd hypothetical that I’m spinning out to try to get you to read this review, well, now you know: It’s time to add Rice’s LIGHTING THE WAY to both your class content as well as your preferred citation manager program.

I reach this conclusion because Rice offers at least two new innovations that advance the literature and make LIGHTING THE WAY a book that needs to be taught about as well as cited in your own work. The first advancement is that Rice approaches the judicial impact topic from the perspective of issue attention. As he puts it, “Policymakers have limited time and resources. In allocating some of their finite time and resources to an issue, they change the probability that we might observe policy change” (p. 5). This is a concept that is probably quite familiar to your public policy colleagues since that is where it originates. It is one, however, that hasn’t been regularly examined by us law and courters. Moreover, it turns out that those in public policy have, in general, returned the slight by giving comparatively short shrift to examining the judiciary (but see Grossmann and Swedlow 2015 for a noteworthy exception). What this means, then, is that LIGHTING THE WAY is one of those rare books that actually has something to say across different subfields.

The second major innovation that Rice’s LIGHTING THE WAY brings us derives from the actors he examines. The most prominent studies of judicial impact tend to focus on the activity and action of the U.S. Supreme Court (e.g., Rosenberg 1991, 2008; Hall 2010). By contrast, Rice’s efforts shine a particularly strong light on the activity of the federal district and circuit courts. Thus, those who frequently bemoan our field’s singular focus on the Supreme Court will find LIGHTING THE WAY to be quite refreshing in just how much it has to say about the impact of the lower federal courts. Rice examines overall federal judicial issue attention on the issue attention of the rest of the policy-making system, but also analyzes how the lower courts impact the issue attention of the Supreme Court (and vice versa).

[*171] But, c’mon, skip to the chase! What camp does Rice and LIGHTING THE WAY end up in? Are we talking pro-Rosenberg, pro-Hall, or something else? Fine, I’ll spoil it for you, but I’d like it noted for the record that I’m only doing so under duress. Rice finds that “courts – long understudied by and underincorporated into studies of policymaking – exert important influence at the most fundamental stage of policymaking: determining whether to pay attention to an issue” (p. 4). However, this influence is not uniform or otherwise unconditional. Rather, Rice theorizes, tests, and finds support for a conditional theory of influence. In particular, he argues that influence is going to vary across policy area and will only occur if there is both a political constituency for the area and a constitutional power of the courts to act in that area. More on those below, but Rice’s brass-tacks answer to LIGHTING THE WAY’s motivating question is (a theoretically motivated) “Yes, but it depends.”

THE PERILOUS PUBLIC SQUARE: STRUCTURAL THREATS TO FREE EXPRESSION TODAY

Vol. 30 No. 11 (December 2020) pp. 165-169

THE PERILOUS PUBLIC SQUARE: STRUCTURAL THREATS TO FREE EXPRESSION TODAY, by David E. Pozen (ed.). Columbia University Press. 408pp. Paper $30.00. ISBN: 9780231551991.

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

THE PERILOUS PUBLIC SQUARE: STRUCTURAL THREATS TO FREE EXPRESSION TODAY by David Pozen is an important collection of essays—actually, they are essays grouped into seven discrete, but interrelated conversations—on how technology has transformed the scope and definition of speech rights. The principal conclusion one draws from the collection is that the advent of the internet, social media, cyberspace, etc. has precipitated a paradigm crisis akin to what Thomas Kuhn discusses in THE STRUCTURE OF SCIENTIFIC REVOLUTIONS. But, this paradigm crisis in science has caused a separate one in the law. Technology’s democratization of access to and the capacity to produce information has rendered traditional, “terrestrial” notions of liberty and rights less useful if not outright antiquated. Human interactions on terra firma are more limited and easily measurable than they are in the essentially infinite “confines” of cyberspace.

THE PERILOUS PUBLIC SQUARE is, therefore, somewhat mis-titled. The discussions do not simply address threats to free expression. In addition, it is clear that technology has amplified the damage that speech can cause and has altered the traditional manner in which freedom of speech is studied. Speech conflicts are frequently (or, perhaps, have traditionally been) cast in terms of vertical confrontations between the generic dissenter and a government wishing to control the dissenter’s speech and horizontal ones in which the government is called upon to referee conflicts between speakers and those they have harmed through libel, fraud, etc. The conversations in THE PERILOUS PUBLIC SQUARE demonstrate that governmental suppression of dissent is much less of an issue in a cyberworld populated by countless, anonymous sources of fake news and deep fakes. Instead, government is clearly outgunned despite that fact that its role as referee is more necessary as a result of the incalculable, instantaneous damage that those countless, anonymous actors can inflict.

This challenge is addressed especially well in the discussion of Frederick Schauer’s “The Hostile Audience Revisited” in Chapter 2 (“From the Heckler’s Veto to the Provocateur’s Privilege”). Managing such confrontations on terra firma requires grace and good judgment on the part of government officials. In cyberspace, it requires potentially infinite resources since the scope of a cyberconflict is, potentially…infinite.

So, a short review of THE PERILOUS PUBLIC SQUARE could be reduced to a statement as simple as something to the effect of: “Surprise! The utopia envisioned [*166] by John Perry Barlow in his “Declaration of the Independence of Cyberspace” (1996) has deteriorated into dystopia just as quickly and unceremoniously as any other utopia.” The contributors in THE PERILOUS PUBLIC SQUARE look to address (but really do not yet come close to answering) the followup question: “What are we going to do about it?”

In the space of a review, it is neither helpful nor possible to offer a synopsis of each of the seven conversations. Nor is it possible to do justice to the contributions made by some three dozen thinkers who represent a sizable part of the cutting edge of scholarship in this area. Instead, I offer an overview of the principal themes that animate and unite the collection. Perhaps the most common theme addresses whether the First Amendment is obsolete in cybertimes. This is the topic of the opening discussion between Geoffrey Stone and Rebecca Tushnet. Their exchange reads like a scorecard of the new battles confronting scholars of, practitioners of and in, and innocent bystanders and sufferers of collateral damage in and from cyberspace and social media.

INTERNATIONAL COURT AUTHORITY

Vol. 30 No. 11 (December 2020) pp. 161-164

INTERNATIONAL COURT AUTHORITY, by Karen J. Alter, Laurence R. Helfer and Mikael Rask Madsen (eds.). Oxford: Oxford University Press, 2018. 496pp. Cloth $105.00. ISBN: 9780198795582. Paper $42.95. ISBN: 9780198795599.

Reviewed by Henry F. (Chip) Carey, Department of Political Science, Georgia State University. Email: hcarey@gsu.edu.

The remarkable and pathbreaking book, INTERNATIONAL COURT AUTHORITY, is based on world-class scholars convening in several sets of workshops to develop conceptual working papers. It provides a conceptual framework to evaluate key functions and effects of international courts (ICs). These are regional and multilateral/global law tribunals for prosecuting crimes or adjudicating international trade law and human rights violations in a comparative perspective. The three primary traits analyzed are one primarily exogenous factor, context, and two combined exogenous and endogenous factors, authority and power. The social science analysis used focus on what lawyers consider de facto legal rule, rather than the legal approach adopting de jure evaluations of what is the law. The social science analysis the authors use focuses on what lawyers consider de facto legal rule rather than de jure evaluations of the law. To some extent, this approach is distinguished from different sets of public law concepts, political versus analytic jurisprudence, or attitudinal research on judicial decision-making. The concern here is how and why those actors interacting with these courts respond. It asks how behavior is changed, based primarily on the Weberian concept of authority and its sociological analyses of the role of law and courts, and then evaluating how those who come before the courts respond to their decisions. The conclusions from the book’s impact analysis do not extend more broadly on the public. We certainly learn much more about the contextual factors that shape how laws are actually understood and implemented. This is a challenging, if not audacious, attempt for a worldwide survey, given the size and variation in world contexts along with the varying missions, traits, and age of the courts themselves.

Legalization, as formulated by Abbott, et al. (2000), is arguably the primary conceptualization of not only these courts endogenous traits but also their impacts on international politics and society. This is particularly the third IV, delegation. However, this book advances its first two IVs, obligation and precision variables, both of which can be understood in de jure and de facto terms but were only developed over two decades ago in de jure terms.

The framework adopted from a dozen case studies posits that direct stakeholders in litigation (“narrow authority”) are the primary context, followed by similar actors with the same potential conflicts (“intermediate authority”). More general civil society actors in academia are the legal profession and industry associations (“extensive authority”). States are seen as veto players, not as reinforcers of legal obligation, legitimacy, and authority. All four of these levels of authority are interdependent. They are prone to complex views of the courts, not simply accepting or rejecting authority, but obeying or disobeying court orders in whole or in part. They do this not only with their own agency, but also to the extent that the other three levels of authority reinforce court judgements, are indifferent to [*162] them, or reject all or part of these decisions. reinforced or indifferent or rejecting part or all of these aspects of any court judgment. The interdependent role of the state, which is undertheorized in this study, can often be a primary factor in reinforcing court judgements. This occurred at the height of the liberal international order, following both the end of World War II and then beginning in the late Cold War under the Bush-Gorbachev New International Order. The implicit conclusion of the study is that courts are quite different from other forms of multilateralism. Instead, they are more similar to supranational organs like the European Parliament or Commission, the Parliamentary Assembly and Council of Ministers of the Council of Europe, and the secretariats of the EU, the UN, the OAS and the African Union. Moreover, courts are also implicitly different from intergovernmental organizations that represent the interests of states more than those representing the international organizations, like the UN Security Council and General Assembly.

Some of the fascinating case studies support the model presented by the editors and authors, but others do not. Certainly, the role of states in the Caribbean Court of Justice are influential in emphasizing the member states’ interests in controlling drug trafficking demonstrates the authority of that court is dependent on fulfilling that political goal. According to Caserta and Masken (see Chapter 7), the Court is more focused on establishing autonomy, first from the Judicial Committee of the Privy Council (JCPC), which had been the highest court in the common law world of many English post colonies. As the court became independent it began establishing laws governing both the court’s role as an appellate body from national courts that have left the JCPC as well as original jurisdiction of the revised treaty of Chaguaramas, which governs the Caribbean Community (known as CARICOM). These small states from the Commonwealth Caribbean like Belize and Guyana have been held liable for election irregularities. It is interesting to compare this court’s independence from main human rights court, the JCPC from which it departed, with the Court of Justice of the European Union (ECJ), which chose to adopt the jurisprudence of the European Court of Human Rights (ECHR), which is the judicial organ of the Council of Europe.

The number and geographic reach of the courts in this volume is quite extraordinary. There is possibly no better study of such courts, ranging from the transnational (viz., the International Criminal Court (which the Trump administration has attempted to sanction because of its investigation into US war crimes)), the International Court of Justice and Islamic Law, the World Trade Organization’s Dispute Settlement Body (which since this book’s publication, is threatened with extinction by the failure of the Trump administration to appoint appellate judges), regional courts in the Americas (the aforementioned CCJ, the Andean Tribunal of Justice, and the InterAmerican Court of Human Rights), Europe (the ECHR, and the ECJ) and Africa (the East African Court of Justice, the ECOWAS Community Court of Justice, the OHADA Common Court of Justice, and the SADC Tribunal). Space limitations in this review prevents a detailed discussion of these individual courts. Not included, for example, are the African Court of Human and Peoples Rights, the International Tribunal for the Law of the Sea, or the ASEAN Intergovernmental Commission on Human (which admittedly is not a court, though one could argue that the non-compliance and impunity of Russia with the ECHR rulings on matters like its violent human rights violations in the Caucuses, or the US impunity for torture before the same court [*163] (the US has observer status in the CoE and is therefore a defendant), suggests that courts without authority on at least some issues may not be altogether than commissions, such as the InterAmerican Commission on Human Rights)).

INCONSISTENCY AND INDECISION IN THE UNITED STATES SUPREME COURT

Vol. 30 No. 10 (November 2020) pp. 158 -160

INCONSISTENCY AND INDECISION IN THE UNITED STATES SUPREME COURT, by Matthew P. Hitt. Ann Arbor: University of Michigan, 2019. 234pp. Hardback $75.00. ISBN: 9780472131365.

Reviewed by Ali Masood, Department of Political Science, Rhodes College. Email: masooda@rhodes.edu.

Legal doctrine is at times inconsistent and unclear. While the norm of consensus and collegiality has been well documented within the U.S. Supreme Court, for a variety of reasons, Supreme Court justices disagree on case outcomes for a variety of reasons. Supreme Court decisions that are divided along ideological lines and split decisions that are counter-attitudinal in nature have received significant scholarly attention within the study of law and courts. What is less known is why the Supreme Court issues unreasoned judgements – those without precedent that are difficult for the lower courts to follow and apply consistently. Matthew P. Hitt’s INCONSISTENCY AND INDECISION IN THE UNITED STATES SUPREME COURT is an ambitious and first book-length analyses that provides an in-depth account of unreasoned judgments by the U.S. Supreme Court. This new and important work is a welcome contribution to the Supreme Court and judicial decision-making literature. The scope of Hitt’s book is novel, the writing style is engaging, and the analysis is both thorough and interesting.

The book is divided into two parts. The first part of the book provides a detailed account of doctrinal paradoxes, discursive dilemmas, and unreasoned judgements. It also provides new insights on recent Supreme Court trends and the frequency with which the justices collectively issue unreasoned judgements. The second half of the book is an empirical exploration of the impact of the Court’s unreasoned judgements to distinct audiences. Hitt begins by assessing attentiveness to unreasoned judgements within the lower federal courts. Next, Hitt examines how the United States Congress might respond to an inconsistent Court through Court curbing legislation. Finally, Hitt gauges the impact of unreasoned judgements on diffuse support for the Supreme Court.

In Chapter 1, the book conceptualizes unreasoned judgements as a phenomenon that occurs when “the judgement of the court is issued without accompanying reasoning that is itself supported by a majority of the justices’’ (p. 3). In other words, a judgement without a reason is where a majority of justices support an outcome, but there is not enough support behind a legal rationale and therefore no precedent is established. The consequence of such an unreasoned judgement is that while the controversy at hand is resolved for a given case, the outcome is almost always isolated from future controversies even within the same issue area. Since there is no precedent, subsequent references to an unreasoned judgment in future cases by the Supreme Court itself or the lower courts are expected to be minimal.

In Chapters 2, 3, and 4, Hitt reinforces the claim that Supreme Court justices issue unreasoned judgements infrequently and reluctantly. The argument provided is that justices prefer to avoid unreasoned judgements when possible, but under certain conditions they become unavoidable. The contention made throughout the book is that unreasoned judgements emerge for a variety of reasons, which include: [*159] (1) dealing with a case that is broad national importance; (2) the justices’ strong desire for reversal or affirmation but for different reasons; (3) when there is majority support for an outcome but no single rationale has an outright majority; and (4) when broader doctrinal concerns about the future applicability of the case to other controversies is more pressing to the justices than a clear and consistent outcome. The findings show that unreasoned judgments within per curiam opinions of the Supreme Court are on a downward trajectory. Hitt also presents a breakdown of unreasoned judgements by issue area and case salience. Additionally, there is information on the likelihood of unreasoned judgements when there is a disordered ideological coalition and when circuit conflict is present. In short, unreasoned judgements are positively associated with a disordered coalition but there is a negative relationship in resolving circuit conflict. There also appears to be no meaningful difference between reasoned and unreasoned judgements for salient and non-salient decisions. This information is new and provides the reader with a much better sense how and when unreasoned judgements are deployed by the Court.

THE CONSCIENTIOUS JUSTICE: HOW SUPREME COURT JUSTICES’ PERSONALITIES INFLUENCE THE LAW, THE HIGH COURT, AND THE CONSTITUTION

Vol. 30 No. 10 (November 2020) pp. 154 - 157

THE CONSCIENTIOUS JUSTICE: HOW SUPREME COURT JUSTICES’ PERSONALITIES INFLUENCE THE LAW, THE HIGH COURT, AND THE CONSTITUTION, by Ryan C. Black, Ryan J. Owens, Justin Wedeking and Patrick C. Wohlfarth. New York: Cambridge University Press, 2020. 350 pp. Hardback $110.00. ISBN: 9781107168718.

Reviewed by Robert M. Howard, Department of Political Science, Georgia State University. Email: rhoward@gsu.edu.

Almost a quarter century ago, Lawrence Baum wrote a seminal book entitled THE PUZZLE OF JUDICIAL BEHAVIOR (Baum 1997). Baum’s premise was that scholars had made only limited development in understanding judicial behavior. Baum tried to determine what existing scholarship had and had not done before concluding that although much progress has been made, the puzzle of judicial behavior ultimately remains and will continue to remain unsolved despite significant scholarly progress.

While the puzzle still remains, law and courts scholars have made significant advances in our understanding over the ensuing years. Many scholars have demonstrated the importance of law and legal concepts, interest groups, strategic bargaining, opinion writing, negotiation, and personal interactions.

This book is a wonderful example of that progress. The authors add to the above emerging list by examining the influence of personality on Supreme Court decision making. It seems so obvious that personality traits would influence the Supreme Court that it also seems strange that there has been so little study of personality and judicial behavior. Gibson’s (1981) early analysis on self-esteem and trial court judges was 40 years ago, and despite its importance, there has been relatively little follow up since the early 1980’s with the few notable exceptions detailed by the authors in the early chapters. It is this gap that Black, Owens, Wedeking, and Wohlfarth so admirably fill with their book THE CONSCIENTIOUS JUSTICE: HOW SUPREME COURT JUSTICES’ PERSONALITIES INFLUENCE THE LAW, THE HIGH COURT, AND THE CONSTITUTION. Throughout their book the authors show how personality is an important factor in the behavior of a Supreme Court justice from agenda setting to opinion writing.

Chapters 1 and 2 lay out the framework and theory of the book. The authors introduce the reader to scholarship on the personality traits of conscientiousness, agreeableness, neuroticism, openness, and extraversion. The book focuses on conscientiousness, defined as “a spectrum of constructs that describe individual differences in the propensity to be self-controlled, responsible to others, hardworking, orderly, and rule abiding” (p. 22). Conscientious people are careful, rule following, and well organized. In contrast, non-conscientious individuals are impulsive and seek immediate gratification. As the authors show in their theory chapter, conscientiousness is an important trait to examine because it comes close to our ideal of judicial temperament and we should see differences in behavior between conscientious judges and non-conscientious judges. [*155]

Chapter 3 introduces the reader to the measurement of conscientiousness, the conscientiousness ranking of the justices from Hugo Black (appointed in 1937) through Elena Kagan (appointed in 2010), and various tests of the validity of the measure. The authors identified and collected written material by and of the justices and then used IBM’s insights program to develop the measure . The actual conscientiousness rankings of the judges should be of significant interest to readers, both scholarly and public audiences. For example, Earl Warren tops the list as most conscientious justice, followed by Thurgood Marshall, Lewis Powell, James Byrnes, and Anthony Kennedy. Others high on the scale include Sherman Milton, Stanley Reed, and Byron White. Those in the middle include Ruth Bader Ginsburg, Robert Jackson, William Brennan, and Charles Whittaker. At the very bottom is William Douglas, with Abe Fortas, and Fred Vinson right above him. As the authors note, this list is not intuitively obvious, but they compile impressive evidence justifying these scores and the ranking. A welcome appendix is attached to this chapter providing details justifying measurement validity.

The rest of the chapters demonstrate the influence of conscientiousness on the behavior of the justices through all the various aspects of Supreme Court behavior and action. Chapter 4, for example, examines agenda setting. The authors show how a conscientious justice is more likely to accept cert, but less likely to vote to be part of a join-3, or tentative vote to grant.

INDIA’S FOUNDING MOMENT, THE CONSTITUTION OF A MOST SURPRISING DEMOCRACY

Vol 30 No. 10 (November 2020) pp. 149 - 153

INDIA’S FOUNDING MOMENT, THE CONSTITUTION OF A MOST SURPRISING DEMOCRACY, by Madhav Khosla. Harvard University Press, 2020. 219pp. Hardback $45.00. ISBN 978–0–674–98087–7.

Reviewed by Sital Kalantry, Clinical Professor of Law, Cornell Law School and Meher Dev, Advocate at the Supreme Court of India and a former Human Rights and Global Public Service Fellow at Columbia Law School. Emails: skalantry@cornell.edu and md3592@columbia.edu.

INDIA’S FOUNDING MOMENT, a book by political theorist and legal scholar Madhav Khosla, is a significant contribution towards understanding the birth of modern India and the historical moment at which the Indian democracy was founded. Many works have been written about imperial ideology. Khosla’s focus is how those who were colonized responded to that ideology. Khosla counters the narrative that India’s founding moment was historically insignificant and instead argues that it was a “paradigmatic democratic experience of the twentieth century”. Instead of using the imperial ideology of political absolutism that the British had offered, Khosla argues that India’s leaders chose to create a “self-sustaining democratic politics” through political education. Based on a meticulous study of works of Indian scholars, he is able to give us a number of insights into how India addressed “The Indian Problem” of self-government and democratization.

He calls for an inquiry into the question of how and why democracy came to be chosen for India rather than focusing on the functioning of Indian democracy. He spends significant time analyzing B.R. Ambedkar’s work. For example, when Khosla places emphasis on the “immediate” granting of universal suffrage. That was seen as an indispensable feature of Indian democracy to Ambedkar who rejected western notions of “gradual extension” of suffrage and saw limiting suffrage “on account of illiteracy” as a “kind of perversity”. It seemed unfair that people who were first denied an education were later denied suffrage because they were illiterate.

Khosla sees the choice of democracy for India as an intentional one. He engages in a study of the plan that emerged for India’s founding moment by examining three themes – codification (Chapter 1), centralization (Chapter 2), representation (Chapter 3). He argues that these themes were fundamental to the architecture of Indian democracy and the constitutional project. They were to make democratization possible by providing the mechanisms by which authority was to be sustained. These themes aimed to breakdown prevailing power structures and establish a collective political form that would be suitable to democratic politics.

In Chapter 1, Khosla argues that India’s constitution makers were aware that a shared understanding of democratic principles was necessary for India’s formation as a democratic polity. However, this shared understanding was missing among the larger population in India. There were fears that lack of consensus around democratic principles would lead to abuse of power and misguided behavior by voters, legislators, and judges. The Indian Constitution, he notes, thus came to be conceptualized as a pedagogical political educative tool for building a new civic [*150] culture of democracy. Extensive codification of democratic principles became a crucial aspect of India’s Constitution and contributed to its substantial length.

Khosla compels the readers to look beyond constitutional theories while analyzing the codification of India’s founding text. He acknowledges that there might be some basis for claims that Indian constitution makers adopted the theory of legal constitutionalism. They put their trust into the judiciary and provided for judicial review by courts to limit state power. On the other hand, he also acknowledges the view that Indian constitution makers adopted the theory of political constitutionalism. They put their trust in the legislature and provided for popular sovereignty. However, he opines that debates over whether Indian constitution makers adopted a legal constitutionalism approach or a political constitutional approach are flawed. They do not recognize that it was not possible during India’s founding moment to adopt one of these theories. These constitutional theories to some extent pre-suppose the existence of established democratic institutions – the judiciary, the legislature and the executive. During India’s founding, India’s constitution makers had to first establish these democratic institutions. He concludes that codification of democratic principles in India’s Constitution was not merely a means to enable or restrict state power. It was focused on creating a consensus on principles that would guide democratic institutions’ exercise of powers. It was a means to cultivate constitutional morality that meant building fidelity to constitutional norms and democratic principles.