Vol. 31 No. 6 (June 2021) pp. 111-114

THE JUDICIAL TUG OF WAR: HOW LAWYERS, POLITICIANS, AND IDEOLOGICAL INCENTIVES SHAPE THE AMERICAN JUDICIARY, by Adam Bonica and Maya Sen. New York: Cambridge University Press, 2021. 314pp. Hardcover $39.99. ISBN:9781108841368

Reviewed by Matthew E. Baker and Christina L. Boyd, Department of Political Science, University of Georgia. Emails: and

In their new book, Bonica and Sen promise a JUDICIAL TUG OF WAR, and they deliver. THE JUDICIAL TUG OF WAR: HOW LAWYERS, POLITICIANS, AND IDEOLOGICAL INCENTIVES SHAPE THE AMERICAN JUDICIARY investigates the battle between the legal profession and political elites “in which the judiciary not only is the prize to be won but is also caught in the middle” (p. 19). The result of this high stakes conflict is a judiciary tinged by politics. In modern times, the legal bar pulls the judiciary to the left, while political elites, on average, yank back toward the right. As Bonica and Sen argue, this “mismatch has acted like an earthquake fault line, exacerbating the judicial tug of war over the nation’s courts” (p. 14). THE JUDICIAL TUG OF WAR is smart, thorough, and well-executed in all ways as it tackles this incredibly salient topic.

THE JUDICIAL TUG OF WAR is organized into three parts, with nine total chapters. Part I of the book examines the legal profession (Chapters 2 and 3), and Part II takes on political elites (Chapters 4, 5, and 6). Part III then examines the implications of the tug of war on the judiciary, including reform efforts and polarization (Chapters 7, 8, and 9).

In Chapter 2, Bonica and Sen detail the “politically outsized roles” (p. 5) played by lawyers during American history and relative to other countries around the world. The authors argue that American attorneys, serving in prominent political roles, shaped politics and policy to favor the legal profession. This is not a surprise given the aberrant number of U.S. lawyer-legislators compared to other OECD nations, as highlighted in Figure 2.4. Chapter 3 then addresses the growth of the legal bar’s political power and autonomy which, together, helped the bar professionally “capture” the judiciary. As a result, the bar retains strong influence over judicial selection (via, e.g., ABA ratings), restrictions on judicial conduct, the process of legal education, and so much more. Among its other highlights, Chapter 3 includes an interesting section on how the self-regulation of lawyers negatively impacts diversity within the legal profession and inhibits access to justice for lower-income Americans.

Chapter 4 introduces us to the other player in the judicial tug of war: politicians. Politicians pull on the other end of the figurative rope, constrained by the legal profession’s capture of the judiciary. This chapter provides the first visual glimpse into Bonica and Sen’s thesis through the use of several spatial models and examples, arguing that the distance between attorneys, judges and politicians changes the degree of judicial capture and, ultimately, affects the ideology of the bench.

Chapter 4 also presents the DIME (Database on Ideology, Money in Politics, and Elections) ideology scores. Using political campaign contributions, these scores allow the authors to place attorneys, politicians, and judges on the same ideological spectrum. While some readers may be familiar with the DIME data from other recent studies, Bonica and Sen’s presentation and use of the data here will surely introduce the data to a new and broad audience. This introduction is fluid and digestible. Among the highlights of the data’s usage in Chapter 4 is a comparison of lawyers’ ideologies to other professionals’ ideologies, showing a high concentration of left-leaning ideology among the legal profession but much more ideological balance among judges. From this, Bonica and Sen theorize that Republican and Democratic politicians have different incentives in judicial selection: Republicans want to see more ideological diversity among judges relative to attorneys (thereby emphasizing party and ideology) whereas Democrats argue for a judiciary that is ideologically reflective of the legal profession and prioritize neutral factors like pedigree and qualifications.


Vol. 31 No. 6 (June 2021) pp. 106-110

CONSERVATIVES AND THE CONSTITUTION: IMAGINING CONSTITUTIONAL RESTORATION IN THE HEYDAY OF AMERICAN LIBERALISM, by Ken I. Kersch. New York: Cambridge University Press 2019. 407 pp. Cloth $84.99. ISBN 978-0-521-19130-8 $84.99. Paper $34.99. ISBN 978-0-521-193109.

Reviewed by Richard L. Pacelle, Jr. Department of Political Science, University of Tennessee. Email:

These have been interesting times (to say the least) for conservative thought (and the Republican Party). The conservative movement and the Republican Party have, depending on your view, either been the victims of a hostile takeover or are just continuing a natural progression set in motion over half a century ago. The roots of the current conservative establishment and its success controlling the courts and articulating a compelling, largely shared, constitutional vision is the subject of Ken Kersch’s CONSERVATIVES AND THE CONSTITUTION.

The book is a multi-layered tour de force explanation of the rise and unification of the conservative legal movement. It is a wide-ranging intellectual history of the birth and evolution of ideas, written in the best tradition of American Political Development studies. The book is dense in every positive sense and Kersch promises that this is just the first of a trilogy.

The book is broadly descriptive and weaves together similar strands of thought. It is meticulously comprehensive, borrowing from an incredible wealth of sources. The voices came from all corners of the political, business, religious, and legal universes. Kersch identifies a wealth of sources of thought and the platforms for their dissemination from the READER’S DIGEST to the NATIONAL REVIEW, Paul Harvey to Rush Limbaugh, and the FIRING LINE to Fox News.

The core argument of the book is that “the defense and restoration of the Constitution played a critical, and served as a politically effective rallying cry, for post war twentieth-century movement conservatives, many of whom angrily alleged that the Constitution had been abandoned by liberals during the New Deal and the Warren Court” (p. x). Kersch details the process by which ideas emerged and got grafted on to similar theories. Some were refined over time while others would be modified, repackaged, and occasionally jettisoned. He refutes the simple (and lazy) description of the conservative legal movement as a coalescing behind the idea of Originalism. Kersch contends that these debates were not simply thinly veiled cover for reaching conclusions that fulfilled conservative policy goals.

Kersch argues that populism and progressivism led to a liberal American century, a period bounded by conservative eras, one ending with the controversial LOCHNER V. NEW YORK (1905) decision and the other taking root during the Reagan presidency, but heavily influenced by the “glorious legacy of Barry Goldwater.” The liberal century began in the Progressive Era, was fueled by the New Deal, and was abetted and expanded by the constitutional revolution that was the Warren Court. The proof of its reach could be measured in the reaction of its opposition. Indeed, the Republicans elected to the White House during this period, Dwight Eisenhower [*107] and Richard Nixon, did not challenge the New Deal and in fact, in some ways, they extended it. Parenthetically, he argues the reverse process would come to define recent American politics. In the 1980s, the parties began to realign and become more ideologically coherent. The electorate also became increasingly polarized. The only two Democrats to win the White House over a thirty-year period were Southern governors. And once in power, Presidents Carter, Clinton, and Obama governed from the center-right.


Vol. 31 No. 6 (June 2021) pp. 103-105

POLICING THE SECOND AMENDMENT: GUNS, LAW ENFORCEMENT, AND THE POLITICS OF RACE, by Jennifer Carlson. Princeton, NJ: Princeton University Press, 2020. 280pp. Hardcover $29.95. ISBN: 9780691183855. ISBN (e-book) 9780691205861.

Reviewed by Staci L. Beavers, Political Science Department, California State University San Marcos. Email:

Though researched and written well before summer 2020, Jennifer Carlson’s POLICING THE SECOND AMENDMENT resonates perhaps even more profoundly in spring 2021. Reading her work in the aftermath of both the summer 2020 protests sparked by George Floyd’s murder and the January 2021 insurrection by a horde that included white supremacists with law enforcement ties was both chilling and insightful, despite not revealing any true surprises.

Carlson succinctly argues that attitudes about race, most specifically attitudes about African Americans, overwhelm rational debates about law gun use, gun ownership, and the 2nd Amendment itself, specifically within the law enforcement community. Importantly, Carlson brings together an academically rigorous analysis with clear and engaging writing accessible to a wide-ranging audience. For those willing to engage in good-faith debates about gun policy, Carlson’s work provides helpful insights and perspectives.

Horrifyingly, source material on police killings of Black men abounds. Carlson’s opening hits the reader with the irony of Philando Castile’s last hours: Castile was a Black man shot and killed by police just hours after explaining to his mother the importance of following the rules of registered gun ownership to protect his own and others’ safety (p. 1). Despite his care in following the rules, the last moments of his life were captured on his fiancée’s cell phone as he was shot by a police officer. As Carlson puts it, “For Castile, there [was] no space for compliance [with gun regulations], no real opportunity to submit without being misrecognized as a violent threat” because of his race (p. 2). Noting the National Rifle Association’s markedly ambivalent stance on Black gun owner Philando Castile’s rights in the wake of his death, Carlson’s opening anecdote encapsulates her broader point: Race pervades and trumps all other aspects of the debate over guns in the U.S., as race both heavily influences public policy and shapes its enforcement. Carlson’s own data show a desire within the law enforcement community for flexibility to enforce gun regulations and to use force against those with (or without) guns at their own discretion, as mediated by their own racial views.

Carlson’s perspective and methods are sociological, and this work brings together multiple analyses to provide an overarching assessment. Chapter 1 provides historical context for today’s gun debates with a brief review of the origins of law enforcement across the U.S. and an overview of the National Rifle Association’s (NRA’s) evolving relationship to the law enforcement community over the last century. She then turns to analyzing interviews she conducted with 79 local police chiefs from three separate states with very different gun cultures and policy environments: Arizona, California, and Michigan. Third, and most intriguingly, [*104] she analyzes observations she made of since-defunct public gun licensing board meetings in two separate Michigan counties, at which local officials interacted directly and openly with applicants for gun permits. Throughout, race suffuses the data and compels her analyses.


Vol. 31 No. 5 (May 2021) pp. 98-102

THE UNITARY EXECUTIVE THEORY: A DANGER TO CONSTITUTIONAL GOVERNMENT, by Jeffrey Crouch, Mark J. Rozell, and Mitchel A. Sollenberger. Lawrence, Kansas: The University Press of Kansas, 2020. 212pp. Paperback $24.95. ISBN 978-0-7006-3004-2. Hardback $55.00. ISBN 978-0-7006-3003-5.

Reviewed by Stone Allen Washington, Department of Political Science, Clemson University. Email:

In the book, THE UNITARY EXECUTIVE THEORY: A DANGER TO CONSTITUTIONAL GOVERNMENT, authors Jeffrey Crouch, Mark J. Rozell, and Mitchell A. Sollenberger begin their work by defining the concept of “the unitary executive theory”, which they assign to having originated during the Reagan Administration in the 1980’s and has since more strongly developed with every subsequent presidency, Democrat and Republican. The unitary theory of power views the president as wielding unfettered executive authority that comes into natural conflict with the separation of powers doctrine in the U.S. Constitution, which assumes an equal distribution of power shared between all three branches of government. As the authors postulate, the unitary theory establishes that “the president of the United States controls the entire executive branch of the government and that he occupies a position of primacy in our constitutional system of separated powers and thus may exercise vast unilateral powers for the public good” (p. 2). With this definition in mind, the authors of the book clearly note that they have adopted a negative perception of the unitary theory, denoting that it has caused serious harm to the traditional constitutional balance of powers as intended by the Framers. In an interesting fashion, they equate the unitary theory to the first impeachment proceedings launched against President Donald Trump, dividing the theory into two distinct portions, which they believe mirror the two articles of impeachment presented against the president.

The first portion of the unitary theory assumes that a president wields unlimited unilateral authority over the executive branch to achieve whatever they desire; this theory is related to the first article of impeachment—abuse of power—brought against President Trump for threatening to withhold foreign aid payments to Ukraine in exchange for a personal request. The second portion of the theory assumes that presidents seek to justify their unilateral authority by superseding or absolving themselves from the constitutional restraints placed on the executive branch; this is related to the second article of impeachment—obstruction of Congress—brought against President Trump when it was perceived that he sought to obstruct the Congressional investigation into his proclaimed abuse of power because he viewed his actions with Ukraine as permissible. The authors seem to profusely focus on ways in which President Trump embodies the primary tenets of the unitary theory, while only partially alluding to other unitary executives that have preceded Trump, such as Abraham Lincoln, Theodore Roosevelt, and Woodrow Wilson, in the book’s introduction. It would provide greater foundational reinforcement to their use and examples of the unitary theory if, in their introduction, they would spend more time citing historical examples for how the unitary theory has been wielded by former presidents, to better set the precedent for the historical examinations made in Chapter 1. While the authors, [*99] provide a versatile assessment of the host of other theories utilized by the aforementioned presidents in Chapter 1, comparing and contrasting these to the unitary executive theory, it seems that the main focus of the book is to critique and assess the unitary theory in lieu of key examples from the Trump Administration.

Crouch, Rozell, and Sollenberger, seem to provide a compelling example of the unitary theory being used to justify broad national security decisions used by presidents. This in reference to President Trump’s hard-fought travel ban executive order, citing the uphill struggle he faced against federal courts to eventually impose a temporary ban on the US Refugee Admissions Program, in the case of TRUMP V. HAWAII (2018). Prior to winning this case, it is noted that the Trump Administration claimed unfettered authority against the federal courts in handling this national security decision, arguing that the courts could not interfere. The authors’ portrayal of the unitary executive theory highlights a more serious rebuke of a president’s tendency to usurp Congressional authority and shared Constitutional powers with the legislative branch. They also criticize more moderate and passive depictions of the unitary theory taken by various Constitutional Law scholars, like Christopher Yoo and Cass Sustein; the criticism of which does at times seem warranted as a means of exposing an interpretation of the theory that is dismissive and non-inclusive of the grave threat that such unchecked power poises to the legislative branch.

Chapter 1 of the unitary executive theory appropriately provides an historic examination of the competing theories utilized by previous presidents. These include, the “life and limb” theory used by President Lincoln to justify his executive war time powers in spite of Congressional disagreement; the “stewardship” theory used by President Theodore Roosevelt, which allowed him to achieve legislative-like goals on behalf of providing public service to the people he served amid the Great Depression (likening himself to a steward); and the most prevalent being the “literalist” theory, adopted by President Taft, which persisted for much of the 19th century and represented the antithesis of the unitary executive theory. It would seem insightful to readers that Crouch, Rozell, and Sollenberger, provide an in-depth assessment of these alternate theories, while also describing the origins of the unitary theory emerging under the tenure of Attorney General Edwin Meese and his former staff lawyers, Samuel Alito and Steven Calabresi, during Reagan’s presidency.

Two versions of the unitary theory are laid bare, the “weak” vs. the “strong”. Supporters of the “weak” unitary executive theory downplay the perceived threats to the balance of powers imposed by a president wielding unchecked authority. They tend to view the unitary theory merely as a means for presidents to efficiently command and direct federal officials within the executive branch. Supporters of the “strong” unitary executive theory advocate for executive power to be indivisible and immune from encroachment by Congress or the courts. Proponents of this view worked in the George W. Bush Administration, arguing that the president may wield inherent or implied powers to supersede Congressional checks, and possess unlimited executive powers over both domestic and international affairs. The authors reference a quote by Professor Chris Edleson that precisely assesses the strong unitary executive theory, which reads that it is “designed to justify unilateral, unchecked presidential power unaccountable to the rule of law” (p. 40). It is nice that the authors classify the political tools of power [*100] available to the president in Chapter 2, allowing for a greater understanding into how the unitary theory can be effectively wielded. This includes their explanation of how the use of executive orders further the strong unitary executive theory view, which are powerful tools to control the executive branch and shape federal public policy-making. Another tool mentioned extensively are signing statements, which can be utilized by presidents to cite disagreements with portions of a proposed bill, to single-out undesirable portions of laws that won’t be executed, and to direct federal officials on how to properly act. This method is also reinforced by the strong unitary theory view, advancing views of an unchecked presidency during the George W. Bush Administration.


Vol. 31 No. 5 (May 2021) pp. 94-97

RECONSTRUCTING THE NATIONAL BANK CONTROVERSY: POLITICS AND LAW IN THE EARLY AMERICAN REPUBLIC, by Eric Lomazoff. Chicago: The University of Chicago Press, 2018. 253pp. Cloth $90. ISBN: 0-226-57931-X. Paper $30. ISBN: 0-226-57945-X.

Reviewed by George Thomas, Department of Government, Claremont McKenna College. Email:

MCCULLOCH V. MARYLAND (1819) may well be the most prominent opinion ever handed down by the Supreme Court. Even if it takes second to MARBURY V. MADISON (1803), it remains in the eyes of many the great opinion delivered by the great chief justice. There is a whole narrative around the national bank debate that informs debates about what the Constitution is, how to interpret it, and who gets to do the interpreting. Not only does the controversy over the national bank reach many other important constitutional issues, but it also informs contemporary debates on these issues (Barber 2013, p. 55; Barnett 2004, pp. 170-71). HAMILTON: AN AMERICAN MUSICAL brought the debate over the establishment of the first national bank into popular discourse with “Cabinet Battle #1”, a rap battle between Alexander Hamilton and Thomas Jefferson. The track engages with the constitutional arguments surrounding the creation of the first Bank of the United States and its broader political implications. Alexander Hamilton defends the bank as part of “running a real nation,” while Thomas Jefferson complains that his opponent just wants “to move our money around” (Miranda 2015).

The basics of the history are well known. Hamilton defended the bank as a proper exercise of Congress’s power under the Necessary and Proper Clause whereas Jefferson argued that such an understanding undoes the logic of the written Constitution. James Madison echoed themes from Jefferson’s argument in Congress, though his arguments were more subtle and complex. But, even with Madison opposed in Congress, the Hamiltonian take ultimately prevailed and was signed into law by President Washington. Under President Jefferson, the first national bank expired, but Republicans came to realize its importance during the War of 1812. Led by Madison, they conceded to its constitutionality as a matter of precedent (or what Madison elsewhere called “constitutional liquidation”). When the second bank’s constitutionality was challenged by Maryland in MCCULLOCH V. MARYLAND, Marshall upheld Congress’s constitutional power to establish a bank largely on the grounds that Hamilton laid out in his arguments with Jefferson. Despite the Court’s holding in MCCULLOCH that the bank was constitutional, President Andrew Jackson vetoed its renewal on constitutional grounds in the early 1830s—echoing Jefferson’s argument that it was “un-necessary” and “improper.”

This set piece, as Eric Lomazoff dubs it, does not capture the constitutional politics around the bank. Lomazoff’s engaging and persuasive RECONSTRUCTING THE NATIONAL BANK CONTROVERSY: POLITICS AND LAW IN THE EARLY REPUBLIC, offers a more complicated picture. It is not simply that Lomazoff gives us a more rounded and detailed picture—which he does—it is that he shows the inadequacy of the standard narrative. Lomazoff highlights the complex politics of economics that are behind the constitutional issues of the first four decades of [*95] the new republic, which are too often left out of the traditional (constitutional) narrative around the national bank. He also reveals that the constitutional arguments are more complicated than they are traditionally made out to be—and have been from the beginning. These two parts come together in one Lomazoff’s more insightful arguments—defending the national bank as part of Congress’s power to “coin money” and “regulate the value thereof.” Part of the story, which I will only mention in passing, is a difference between the nation’s fiscal policy and its monetary policy. Focusing on this difference, Lomazoff’s detailed historical research illustrates how the bank’s initial institutional mission changed over the years as it experienced institutional drift. He also explains that part of that change led to different constitutional arguments to justify the bank because of an altered understanding of the bank’s purpose. The change in the bank’s purpose led Republicans to defend the constitutionality of the bank by way of the coinage clause.

Lomazoff’s telling is compelling. He weaves together complex arguments about money and finance in understandable ways. If he can occasionally get too bogged down in detail the author nevertheless provides an insightful analysis of how these issues informed the broader controversy over the national bank. He contends that in the end, ordinary politics about economics drove political development and arguments about constitutionality. One of the virtues of Lomazoff’s analysis is bringing “economic facts” into the mix (p. 168).

Independent of this point, which is especially important in noting the institutional drift of the bank, Lomazzof offers a detailed analysis of the constitutional arguments at play. He shows, for instance, that the objections to the national bank on constitutional grounds, which usually seem to rely on “strict” or “broad” readings of the Necessary and Proper Clause, were more varied and nuanced in the first debate over the bank than is ordinarily understood. One of the interesting things to come out of this analysis is the argument that the national bank could not be deemed “necessary” because “loans could be provided by state-chartered banks” (p. 24). Focusing on existing avenues for Congress to reach its purposes reflected a strand of Republican thinking regarding “constitutional necessity” that would become vitally important to future bank debates.


Vol. 31 No. 5 (May 2021) pp. 88-93

A POLITICAL PHILOSOPHY OF CONSERVATISM, PRUDENCE, MODERATION AND TRADITION, by Ferenc Hörcher. London and New York: Bloomsbury Academic. 2020. vi + 210pp. Hardback: $103.50; Paperback: $35.96. ISBN: 978-1-350-06718-9.

Reviewed by H.G. Callaway, Department of Philosophy, Temple University. Email:

Ferenc Hörcher is Head of the Research Institute of Politics and Government of the National University of Public Service, Hungary. His new book, A POLITICAL PHILOSOPHY OF CONSERVATISM, appears in the Bloomsbury Studies in the Aristotelian Tradition. Hörcher aims to understand, elucidate and develop political conservatism in the long Aristotelian-Stoic tradition. He emphasizes the role of character formation for statesmanship and political actors, the constraints implied by specific cultural traditions and the details of factual context. Hörcher also addresses the contemporary standing and revival of Aristotelian virtue ethics and the specifically political virtue of prudence or “practical wisdom.” The book comes recommended by Harvard University historian James Hankins, who, on the back cover, recommends it for readers “disturbed by the collapse of statesmanship in the contemporary world.”

Regarding both political theory and law, Hörcher emphasizes Aristotle’s “phronesis,” or practical wisdom, in contrast to abstract, theoretical or “scientific” reasoning. The author is strongly oriented to the conservatism of the contemporary Cambridge school of the history of political thought, and his “Introduction” contains an opening contrast between political roles of abstract conceptions of justice (as found in authors from Plato to John Rawls and Ronald Dworkin) and the virtues of prudence and moderation. Hörcher writes that “the aim of the venture is to draw the outlines of a political philosophy of conservatism based on prudence” (p. 3).

The clear implication is that there can be an excessive and distorting emphasis on justice, or that single-minded focus on rights and justice tends to be imprudent and/or lacks for moderation. Beyond his historical treatment of the political roles of the concept of prudence, Hörcher engages with contemporary political thought, including, authors such as Richard Bourke, Michael Oakeshott, and the Cambridge political historians and theorists. John Dunn’s INTERPRETING POLITICAL RESPONSIBILITY (1990) is especially worth considering in connection with Hörcher’s book. The “political realism” associated with the English moral philosopher Bernard Williams (1929-2003) and the more radical and continentally oriented version of philosopher Raymond Geuss contribute significantly to the overall picture and the development of Hörcher’s conservatism.

In the wake of the globalizing regime of neo-liberal, economic “creative destruction” and our recent experience of former President Trump’s impulsive responses, readers might suppose that deeper interest is now arising for the revival and reconsideration of conservative political thought. It may appear that in the U.S., for example, we have few political thinkers of a distinctly conservatives cast and that their place has often been taken by utilitarians or libertarians. But “those who explain (or celebrate) the workings of modern capitalist politics through the model of market rationality presume [*89] a high degree of prudence in the agents concerned,” (Dunn 1990) and “Inspection of the world in which we live does little to confirm these fond imagings” (Dunn 1990, p. 4, Cf. Hörcher 2020, p. 167, n7). The present book features attention to the thought of Friedrich Hayek in political economy for example, but not that of Robert Nozick. Still, the chief line of criticism or opposition in the present volume is directed against the domination of abstract philosophical ethics (chiefly utilitarian or Kantian) over practical political aims and decisions.

Given the centrality of Aristotle’s POLITICS and the NICOMACHEAN ETHICS, it is important to note Hörcher’s emphasis on Aristotle’s work, THE CONSTITUTION OF ATHENS. The point is that Aristotle’s political thought is not simply a reflection of his experience in, or the power of the Macedonian court. Law and politics are not purely abstract, rational or deductive subjects. This kind of point reflects criticism of “rationalism in politics,” and rejection of the notion that abstract principles imply the specifics of policy or political action. Experience-based, “practical wisdom” which exists in particular social and political traditions, contrasts with “episteme, scientia and sophia.” Rejecting moral and cultural relativism (p. 2, pp. 98-99), adequate conceptions of universal values are to be arrived at via consideration of the varieties of particular cultural and political developments. Neither is practical wisdom in politics merely an expressions of power. Prudence, or practical wisdom, for Aristotle, Cicero, and the Renaissance thinkers, and for Montaigne, is a virtue or habit of action standing between excessive caution and impetuosity.