BEYOND HIGH COURTS: THE JUSTICE COMPLEX IN LATIN AMERICA

Vol. 30 No. 3 (April 2020) pp. 53-57

BEYOND HIGH COURTS: THE JUSTICE COMPLEX IN LATIN AMERICA, by Matthew C. Ingram and Diana Kapiszewski (eds). Notre Dame, IN: University of Notre Dame Press, 2019. 344 pp. Hardcover $55.00. ISBN: 978-0-268-10281-4. eBook (PDF) $43.99. ISBN: 978-0-268-10283-8. eBook (EPUB) $43.99. ISBN: 978-0-268-10284-5.

Reviewed by Susanne Schorpp, Department of Political Science, Georgia State University. Email: sschorpp@gsu.edu.

BEYOND HIGH COURTS promises what the title suggests: an examination that pushes our focus from high courts to other actors in the justice complex of which they are part by starting with Latin American institutions. While the ultimate goal is to better understand the justice system as an organic entity, the editors rightly underscore that this requires an understanding of the parts. As such, the book can best be seen as providing a basis from which to build a more intricate web of knowledge spanning the justice complex as a whole. The focus, as the editors concede, is to understand de jure features of institutions---their design rather than their de facto behavior---as a necessary first step to assessing the gap between design and effect. As the editors state in their introduction, understanding “nonpeak institutions of justice is particularly important [...] where law is unevenly applied, employed, and enforced, and justice is distributed unequally across geographies and social classes” (p. 31). Especially laudable is the collection and presentation of rich data as well as the historical background associated with the actors that the book focusses on. Each chapter also provides a detailed overview of scholarship from both the US and Latin America on the Latin American justice complex.

Chapter 2 analyzes differences in the adoption of formal rules regarding public prosecutor’s offices (PPO) in Chile, Mexico, and Brazil during the countries’ democratic transitions. As Azul A. Aguiar-Aguilar convincingly argues, effective PPO offices are “crucial in order to foster the rule of law and implement democratic procedures” (p. 39). The protection of criminal due process (conceptualized here as an accusatorial system) and the independence of the PPO are needed to ensure the “rule of law” rather than a “rule by law” (p. 48). Aguiar-Aguilar proceeds to identify how many of the nine indicators of an accusatorial criminal system and five indicators of an independent PPO are formally included in the constitution or penal codes of each country both before and after their democratic transition. Looking at the actors [*54] and the historical contexts involved in the adoption of new rules, Aguiar-Aguilar argues that interest group mobilization rather than the preferences of elected officials explains the variation in adopted reforms regarding criminal due process and institutional independence of the PPO.

Chapter 3 nicely transitions to a more detailed evaluation of PPO independence on the example of Brazil. The chapter tackles the following puzzle concerning the Brazilian PPO: why is the PPO perceived as a strong actor, but classified as a low-independence actor in cross national studies? Ernani Carvalho and Natália Leitão argue that the answer is to be found in the divergent positions that the PPO occupies on two distinct dimensions: internal and external independence. They identify de jure indicators for each dimension and provide a qualitative analysis of the Brazilian PPO based on the identified factors. The authors also classify and plot Brazil’s PPO on both dimensions against a cross national selection of PPO’s (taken from Aaken, Feld, and Voigt 2010), revealing Brazil’s unusual position as most internally independent, yet only weakly externally independent PPO. Interestingly, the indicators plot the US lower on both axes---and particularly low on external independence. The comparison to the US---considering recent criticisms of Barr---further serves to underscore the potential role of de jure protections in de facto behavior. Carvalho and Leitão’s chapter ends with a call to further investigate the effects of internal versus external de jure independence on de facto power of the PPO.

In Chapter 4, Catalina Smulovitz shifts the focus to explain variation in access to public defense lawyers on the example of Argentina. While her quantitative analysis is more suggestive than determinative due to the small number of provinces, the results suggest---after accounting for population and size of the province---the number of lawyers is inversely related to the number of public defenders, which she argues is a function of protective professional lawyer associations seeking to “decrease the local supply of public defenders because they perceive public defenders as potential threats to their incomes” (p. 130). More broadly, Smulovitz nestles her findings at the intersection of access-to-justice and federalism scholarship to explain the heterogenous distribution of access to public defenders in Argentina’s federalist structure.

RECONSTRUCTING RIGHTS: COURTS, PARTIES, AND EQUALITY RIGHTS IN INDIA, SOUTH AFRICA, AND THE UNITED STATES

Vol. 30 No. 3 (April 2020) pp. 47-52

RECONSTRUCTING RIGHTS: COURTS, PARTIES, AND EQUALITY RIGHTS IN INDIA, SOUTH AFRICA, AND THE UNITED STATES, by Stephan Stohler. Cambridge, UK: Cambridge University Press, 2019. 264 pp. Hardcover $110.00. ISBN: 9781108493185.

Reviewed by Allyson C. Yankle, Department of Political Science, Radford University. Email: ayankle@radford.edu.

By conceptualizing judges as deliberative partners with their elected counterparts, RECONSTRUCTING RIGHTS: COURTS, PARTIES, AND EQUALITY RIGHTS IN INDIA, SOUTH AFRICA, AND THE UNITED STATES offers a novel approach to understanding constitutional interpretation by conceptualizing judges as deliberative partners with their elected counterparts. Stohler examines when the judicial branch engages in doctrinal innovation by utilizing case study of equality rights in India, South Africa, and the United States. The book provides a detailed and rich look at the signals between judicial actors and elected officials surrounding specific issues within equality rights. It is ambitious in its examination of equality issues in the United States, India, and South Africa and the limited amount of space leaves the reader wanting more discussion of not only the cases but also the implications of the study.

In the introductory chapter, Stohler begins with a series of controversial judgments from the South African Constitutional Court where the Constitutional Court, staffed with African National Congress (ANC) appointees issued a series of rulings favoring the interests of the apartheid-era National Party. In later cases, however, the interpretation swung back towards alignment with the interests of the ANC. Eventually, the Constitutional Court reached an interpretation that fell in line with the policy interests of the ANC. This story illustrates the ongoing signal and dialogues that occur between elected officials and judges, weaving together Bickel’s (1962) acknowledgement that multiple actors can, and do, engage in legal interpretation with Dahl’s (1957) assertion of the judiciary as partners in the political regime (p. 12). Stohler focuses on instances of judicial innovation where “the doctrinal holding and is supporting rationale clearly depart from established law or from the preferred views of members of the elected branches” (p. 23). In turn, this innovation may be rejected or accepted in future cases, depending on the reaction of the judiciary’s deliberative partners. The deliberative partnership is evaluated by five pieces of evidence, [*48] including (1) information about existing law; (2) the preferred legal interpretations of the other branches; (3) the legal interpretation of judges; (4) reactions to judicial decisions by the other branches; and (5) judicial reactions to the other branches’ interpretations in future cases (p. 24). Stohler concludes this chapter discussing how and why he chose to test his theory of deliberative partnership in equality cases in the United States, India, and South Africa.

The first unit of the book addresses equality rights in the United States. Each chapter in this section begins with a Supreme Court case within the specific area before jumping backwards to a piece of national legislation meant to address the specific issue of inequality. From the national legislation, Stohler brings together a wide range of primary sources to capture the policy positions of elected officials, party coalitions, and individual justices.

The deliberative partnership between the Supreme Court and elected branches is particularly evident in the second chapter where Stohler addresses equality rights regarding public education and school funding. Stohler demonstrates the deliberative process engaged in by progressives (namely President Carter’s Assistant Attorney General Days and the Supreme Court’s liberal wing) in REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE with a focus on the development of intermediate scrutiny as well as justifying race-conscious policies. Likewise, Stohler engages in a similar analysis of deliberation between conservative justices on the Supreme Court and their elected counterparts. Here, the focus is on decision in FULLILOVE v. KLUTZNICK and a split in the Supreme Court’s conservative wing where two justices, Rehnquist and Stewart, were committed to color-blindness interpretations, while other conservative justices and their counterparts in the executive and legislative branches sought alternative interpretations. It was only after a series of personnel changes on the Court that conservative justices and their deliberative partners came to a coordinated interpretation concerning equality in public education and school funding.

The second chapter is by far the most successful in clearly demonstrating how a deliberative partnership works. The author provides a detailed account supported by primary documents of the interactions and signals between the justices on the Supreme Court, the elected officials, and other political actors. Additionally, he explains how changing political environments and evolving judicial interpretations have impacted the doctrinal development in this area of case law. Finally, Stohler provides the readers with clear tables addressing when progressive and conservative deliberation resulted [*49] in either no doctrinal innovation, accepted doctrinal innovation, or rejected doctrinal innovation.

THE BALANCE GAP: WORKING MOTHERS AND THE LIMITS OF THE LAW

Vol. 30 No. 3 (April 2020) pp. 41-46

THE BALANCE GAP: WORKING MOTHERS AND THE LIMITS OF THE LAW, by Sarah Cote Hampson. Palo Alto, California: Stanford University Press, 2017. 184pp. Cloth: $24.00 ISBN: 9781503602151.

Reviewed by Renee A. Cramer, Law, Politics, & Society, Drake University. Email: renee.cramer@drake.edu.

Since its publication in 2017, Sarah Cote Hampson’s book THE BALANCE GAP: WORKING MOTHERS AND THE LIMITS OF LAW has become one that I return to frequently. I have taught it on several occasions (in courses as varied as introductory Law and Politics classes and our Senior Seminar, as well as in Reproductive Law and Politics), and I am referencing it extensively in preparation of a new book manuscript that examines, in part, the limits of legislation and regulatory policy in achieving gender equitable change. For me, THE BALANCE GAP has endured so well because of the outstanding way that Hampson combines case study methodology with interview data in a theoretically rich analysis that moves public law, political science, and sociolegal scholarship forward, while contributing to policy conversations in the service of the public good.

Hampson’s main focus in THE BALANCE GAP is whether and when women access family leave policies in their workplace. She argues that understanding women’s decision making in these regards can help scholars understand the relationship between legal consciousness and legal mobilization; it can also help policymakers and advocates understand the limits of law in accomplishing gender justice. The book is compelling, and hopeful – even as the main finding is depressing. Simply put, Hampson’s research shows that women often do not access the leave available to them because they understand that to do so will highlight the gap between their (often excellent) work ethic and accomplishments, and the ethic and accomplishments required of an “ideal” (read: unencumbered and hyper-focused male) worker.

Hampson’s data collection occurs via long, semi-structured interviews with academic and military women. She interviews female faculty at public universities, and female soldiers in several branches of the military. Rather surprisingly, these are apt sites of comparison. Both public university faculty and military soldiers are employed by the public for the public good, and both are sites where women have traditionally been underrepresented in the workforce. [*42] In both the military and the academy, standards for promotion are often bureaucratically (if not clearly) delineated and hierarchy (rank) and status are paramount. Both employers often have policies for gender equality in place, policies facilitating maternity leave key among them. The Introduction does a good job of walking the reader through site selection and the interview process, as well as concisely articulating the theoretical contributions the book makes to our fields.

Indeed, Hampson’s interview data is rich, and relayed with urgency and compassion. Chapter One reports the experiences of women in higher education; Chapter Two shows how women navigate similar rules in the military. Throughout the book, the words of these mothers/workers jump off the page, pointing to the ways that mothers are marginalized in multiple ways: as workers by the perception that they will no longer take their jobs seriously; as mothers by the perception that they care more for their job than their families; and across the board by policies that put them at risk for losing their jobs by not gaining tenure, or by retribution from peers for being assumed to seek to avoid deployment when their children are infants, or being “on sabbatical” rather than maternity leave. As Paige, a 49-year-old associate professor, told Hampson, “I wasn’t going to try to have kids before tenure, because I just didn’t feel secure… I just literally didn’t know if I would get tenure or not, and if I had a baby and didn’t get tenure, then what would we do...?” (p. 82). Later in the book, Hampson quotes Valerie, a visiting assistant professor, who tells her, “I did have someone tell me, you know, ‘People have trouble taking moms seriously, and they won’t take you seriously if they see you walking around with your son. They won’t think you take the job seriously’” (p. 112). And Hampson begins Chapter Two with a quote from “Chloe,” a thirty-seven -year-old Air Force captain, and mother of four, who said in her interview, “When I came back to work after I had the twins, the leadership was fine ... but my peers – I was treated like, ‘Oh you’ve been off, you’ve been on vacation the whole time; now it’s your turn to do the work!” (p. 42).

All of these women – Paige, Valerie, and Chloe – had access to policies that enabled them to stop their tenure clock, bring their children to campus during emergencies, and take medical and family leave. All of them reported feeling hesitant to access those policies. In nuanced elaboration of these quotes, and others, Hampson discusses how deployment for military moms and tenure clock pressures for academic moms complicate the taking of leave and the ability of women to access policies meant to help them balance both parenting and working. [*43]

What, Hampson asks, is going on? Why are policies that are meant to facilitate women taking leave failing to achieve their goals? Why are women hesitant to access policies meant to help them have both – a career and a family?

Chapters Three, Four, and Five (respectively) of THE BALANCE GAP examine this phenomenon in light of institutional contexts, ideologies, and instrumental action in order to show the constitutive relationship between the three in the construction of legal consciousness and mobilization. Hampson argues that there are informal mechanisms that instruct women about the validity of accessing formal policy. She shows how those informal mechanisms are reinforced by cultural contexts that value particular kinds of workers; these “ideal workers” are unencumbered men that are devoted to the job over family. Hampson notes that women aren’t idly accepting of these contextual messages – but acknowledges that they might ignore them at their own peril. Developing a theory of “institutional consciousness networks,” Hampson argues that “individuals intentionally seek to influence their own legal consciousness and the legal consciousness of those around them within a particular institutional and policy context,” in a way that is important for scholars and policy makers/advocates to understand (p. 62). As Hampson notes, “policies that aim to improve work/life balance are often created with the hope that changes in structural support for women in the workplace will foster social changes to also take effect at work… increas[ing] women’s participation in the workplace… [and] also help[ing] women to experience greater overall equity as workers,” (p. 3). Understanding why these policies fall short is a critical project.

ORIGINALISM’S PROMISE: A NATURAL LAW ACCOUNT OF THE AMERICAN CONSTITUTION

Vol. 30 No. 3 (April 2020) pp. 34-40

ORIGINALISM’S PROMISE: A NATURAL LAW ACCOUNT OF THE AMERICAN CONSTITUTION, by Lee Strang. New York: Cambridge University Press, 2019. 314 pp. Cloth $110.00 ISBN: 978-1108475631. Paper $34.99. ISBN: 978-1108468732.

Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: whitley_kaufman@uml.edu.

ORIGINALISM’S PROMISE is an uncompromising defense of the “originalist” school of law, according to which a judge’s duty is to follow the law as written, based on the “original meaning” of the law. It provides a useful summary of the current developments among originalists and the author is well read and well informed (at least on originalist literature) and attempts a new and original defense of originalism based on natural law. The book is amply footnoted and well documented on the topic, addressing numerous current controversies among originalists, and those who are interested in the originalist doctrine will no doubt find it useful. Indeed, it is striking how much diversity and disagreement there is among those who call themselves originalists. The defense of originalism presented in this book is original but, I will argue, unconvincing.

One of the biggest problems with originalism is that it is a slippery doctrine, with a shifting meaning. All too often, originalists defend (as does Strang) a doctrine that amounts to the unsurprising idea that one ought to follow the law as written, following the intentions of the legislature. Put this way, originalism simply is another way of asserting the Rule of Law: that society is governed by laws rather than arbitrary decisions. But if this is all that originalism means, it is simply a truism and not even an interesting doctrine; the only people who would reject it are extremists and anarchists. The problem is that originalists conflate this truistic idea with another idea, one that nonoriginalists reject: that the “original meaning” of all laws is simply a matter of fact out there to be discovered. For nonoriginalists, this is a naïve and unconvincing positivistic assumption; especially when it comes to the Constitution, which is full of highly abstract, ambiguous language (“due process,” “equal protection,” etc.), interpretation is a complex process, involving judgment, discretion, and necessarily value judgments as well, not merely factual determinations. Critics of originalism do not of course reject the Rule of Law nor call for disregarding the Constitution. What they object to about originalism is not merely [*35] the assertion that one ought to follow the law, but rather its implausible portrayal of following the law as merely a mechanical process of historical discovery of the facts.

Unfortunately the classic originalist strategy is all too often to act as if critics are objecting to the truistic version of originalism, when in fact what critics object to is the latter idea that legal interpretation is a neutral, value-free process, entirely determined by the historical evidence. Strang himself engages in this strategy. For him, originalism simply means that a judge should act in “good faith,” take into account the meaning of the law in question, apply that meaning to the facts, and “respond to plausible counterpoints” (p. 96). But who on earth would disagree with that (is he implying that nonoriginalist judges and scholars act in bad faith?). The nonoriginalist can agree with everything Strang says, but insist that originalism is naïve to think that all difficult questions can be settled simply by finding the meaning and applying it to the facts. The real debate is about what the judge should do when the law “runs out.” Unfortunately, Strang (like most originalists) spends far too little time addressing this question, which is the real heart of the debate. To his credit, Strang does recognize that there will always be some indeterminacy, and judges will inevitably have to engage in some “construction” rather than mere interpretation of the law. However, he continually downplays this indeterminacy, saying for instance that this zone of indeterminacy is “relatively small” (p. 83), and that we only need a “modest” amount of construction (p. 66). This is quite unhelpful: what does “relatively small” or “modest” mean? And on what evidence does he base these claims? A nonoriginalist could easily agree that the vast majority of cases are relatively easy, but that there will be a small number of “hard cases” – many of them of profound importance -- that require going beyond original meaning, where the Constitution simply does not give us clear guidance.

One of the striking features of Strang’s defense of originalism is just how much he concedes to his opponents. For him, there will always be cases where the original meaning is “underdetermined” and hence a role for “construction” (i.e. creating new law) as well as merely interpreting existing law (p. 31). He allows that for some Constitutional provisions there is no “coherent original meaning” (p. 214). He makes a place for “contextual enrichment,” a fancy way of saying that there is substantial indeterminacy in the text and interpreters will need to consider such factors as historical context, the larger purposes for which a clause was adopted, and the “broader milieu in which the text was adopted” (p. 35). Strang also concedes the need to go beyond original meaning at times, for instance in retaining nonoriginalist precedents if they promote substantive [*36] justice and promote the common good (p. 123). He concedes the need for the development of a body of Constitutional doctrine, since “original meaning itself resolves few issues” (p. 181). He even recognizes that the Constitution contains moral norms, requiring the interpreter to engage in moral reasoning (p. 214). And he has a long discussion of how the Constitution was designed to accommodate societal change over time. But if this is true, then it seems there is little difference between originalists and nonoriginalists in principle – the real debate comes down rather to concrete applications.

BLACK AND BLUE: HOW AFRICAN AMERICANS JUDGE THE U.S. LEGAL SYSTEM

Vol. 30 No. 2 (February 2020) pp. 30-33

BLACK AND BLUE: HOW AFRICAN AMERICANS JUDGE THE U.S. LEGAL SYSTEM, by James L. Gibson and Michael J. Nelson. New York: Oxford University Press, 2018. 220pp. Cloth $99.95. ISBN: 9780190865214. 224pp. Paper $29.95. ISBN: 9780190865221.

Reviewed by Eric N. Waltenburg, Department of Political Science, Purdue University. Email: ewaltenb@purdue.edu.

James L. Gibson and his various coauthors have contributed mightily to political science’s understanding of the concept of legal legitimacy. And in BLACK AND BLUE, Gibson and Michael J. Nelson add to this already considerable body of research by systematically analyzing the attitudes of black Americans toward the U.S. legal system. A key empirical assumption they make and confirm is that black Americans are not monolithic; they differ in their personal and vicarious experiences with legal authorities and in their group attachments and consciousness. Importantly, these intra-racial differences affect the structure of black attitudes toward the justice system. Grounding their analysis in positivity theory, Gibson and Nelson find that the symbols of legal authority have different effects depending upon experiences and group identities. For some black Americans, judicial symbols evoke positive, legitimacy-enhancing attitudes, which protect the Court’s legitimacy from disappointing decisions and militate for the acceptance or at least toleration of unpopular rulings. Yet for many blacks, the symbols of judicial authority seem to be associated more with social control and repression. For these black Americans, exposure to symbols of judicial authority depress legal legitimacy, and this leads to perhaps the most important theoretical take-away from their analysis: positivity theory is in need of some modification. Contrary to the conventional “to know the courts is to love them” mantra, symbols of judicial authority do not have a uniformly positive effect. Exposure to the symbols stimulates preexisting attitudes and associations. While for some these associations are generally positive, for others the symbols may be linked to more negative perceptions of social control and repression (p. 170f).

Gibson and Nelson’s objective in BLACK AND BLUE is much broader than a test of positivity theory upon a representative sample of black Americans. As they put it, “Our overarching purpose in this book is to describe and analyze the ways that black Americans relate to law and legal institutions” (p. 5). And to that [*31] end, they present five empirical chapters that explore black attitudes toward different aspects of the U.S. legal system. They begin with an analysis that they admit is a bit one-off since it concerns inter-racial differences in diffuse support for the Supreme Court (“Diffuse support” or institutional legitimacy is the enduring belief among the public that an institution has the “authoritative mandate to make policies" (Clawson and Waltenburg 2009, 5; see also Easton 1965, 273; Caldeira and Gibson 1992, 637)). Using data from the nationally representative Freedom and Tolerance Surveys, they show that black (and Hispanic) levels of diffuse support for the Court are significantly lower than white levels of diffuse support. A multivariate analysis of the predictors of diffuse support suggests this is due to a much weaker relationship between diffuse support for the Court and democratic values among blacks than whites.

Given the importance of group identities and experiences to their analysis, Gibson and Nelson then turn to a systematic exploration of those concepts. Here they draw on their survey of a nationally representative sample of black Americans, which contains data on blacks’ “racial identities, … experiences with law enforcement, and … support for the legal system” (p. 51f). (This is the dataset they use for the remainder of their empirical analyses.) They find that a nontrivial proportion of black Americans have had recent experiences with legal authorities that they perceive as unfair and that blacks are not uniform in the degree to which they identify themselves as black or think of their fate as closely connected to the fate of other black Americans. Finally, Gibson and Nelson demonstrate that personal and vicarious experiences, group attachment and consciousness are each distinct concepts.

Turning to whether perceptions of fairness regarding the justice system affect Supreme Court legitimacy, they find no direct effect. However, they show that group identities and group consciousness have powerful conditioning effects on the relationship between perceptions of system fairness and the Supreme Court’s legitimacy. For blacks with high levels of group consciousness, there is a strong link between perceptions of fairness of the justice system and Supreme Court legitimacy. To put it concretely, black Americans with a strong sense of linked fate are more apt to see a close association between their perceptions of system fairness and Court legitimacy. Meanwhile, for blacks with low group attachments, there is also a positive relationship between system fairness and Supreme Court legitimacy, but this effect disappears among blacks with high levels of group attachment. [*32]

COLONIAL LIVES OF PROPERTY: LAW, LAND, AND RACIAL REGIMES OF OWNERSHIP

Vol. 30 No. 2 (February 2020) pp. 25-29

COLONIAL LIVES OF PROPERTY: LAW, LAND, AND RACIAL REGIMES OF OWNERSHIP, by Brenna Bhandar. Durham and London. Duke University Press, 2018. 265pp. Paper. ISBN: 978-0-8223-7146-5

Reviewed by Maria Monica Parada-Hernandez, Department of Political Science, Rockefeller College of Public Affairs & Policy, State University of New York at Albany. Email: mparada@albany.edu.

The history of white colonialist dispossession seems to have no end. At present, peasant and ethnic groups dispute rights over a land they claim as their own and face the giants of the state and the private sector who do not hesitate use violence, disguised as law, to eliminate – and in some cases extinguish – these groups. The nineteenth-century heritage of land administration currently operates through much more sophisticated mechanisms that attempt to erase the racial, class and gender origins of disputes over natural resources. The book COLONIAL LIVES OF PROPERTY: LAW, LAND, AND RACIAL REGIMES OF OWNERSHIP by Brenna Bhandar is a reminder of what path we have traveled to reach this point and why it is important to think of ways to stop it.

The central argument that guides Bhandar's research is that modern property law developed along with and through colonial modes of appropriation and accumulation. According to Bhandar, the mechanisms and techniques through which modern property law operates, including legislation, legal judgments and everyday practices, are closely related to the formation of racialized legal subjects. The result of this process is what she calls "racial regimes of ownership": a concept that, inspired by Cedric Robinson's (2007) theory of racial regimes, explains why it is not possible to understand the notions of “race,” “ownership” and “property” in isolation, and instead must be considered in relation to each other.

Bhandar's analysis falls between Marxist and post-colonial studies, two approaches that allow her to denounce the complicity of the law in maintaining economic inequality (a topic that contemporary property theorists have already thoroughly studied) through the creation of racial subjects. Consequently, the author explores the relationship between race and property rights from the reconstruction of the political and philosophical bases of private property law in four colonial settings: British Columbia, South Australia, and Israel/Palestine. [*26]

The selection of case studies is curious. Bhandar explores the colonization process in four different places and historical moments without clearly establishing the methodology for choosing the cases. Her objective with the case studies is to identify specific legal forms of land appropriation in different property regimes – specifically common law and Zionist philosophy – and then trace their legal nature in order to show that the temporalities of colonialism are multiple and uneven. In other words, juridical forms appear in different times and spaces and there is no guarantee that “a given articulation of race and property ownership will appear in the same configuration across time or jurisdiction” (p.12). Thus, the cases used in the study adequately illustrate the existence of racial regimes of property, but questions about the selection of cases and how they relate to each other remain unanswered.

Bhandar uses four sources of information in her analysis: (i) the writings of political economists such as William Petty (famous for his contributions to technologies for the measurement of land and productivity) John Locke and Joseph Trutch, who, since the XVII century, inspired the Commonwealth legislation; (ii) secondary literature that contributes both to the study of the cases and to the understanding of the legal concepts related to property rights; (iii) legal norms and official documents issued by the colonial governments studied; and (iv) judicial cases that contribute to understanding how the legal subjects were shaped and their relationship with ownership to this day.

RECONSIDERING JUDICIAL FINALITY: WHY THE SUPREME COURT IS NOT THE LAST WORD ON THE CONSTITUTION

Vol. 30 No. 2 (February 2020) pp. 18-24

RECONSIDERING JUDICIAL FINALITY: WHY THE SUPREME COURT IS NOT THE LAST WORD ON THE CONSTITUTION, by Louis Fisher. University Press of Kansas, 2019. 288pp. Cloth $45.00. ISBN: 978-0700628100.

Reviewed by Esra Gules-Guctas, Department of Political Science, Rockefeller College of Public Affairs & Policy, State University of New York at Albany. Email: egules-guctas@albany.edu.

Conventional wisdom holds that when the "Supreme Court has spoken," the conversation must end. Judicial finality is often cited to point out that the Supreme Court of the United States has established supremacy over contested constitutional questions. Yet the notion of unaccountable judicial elites having the final say on constitutional meaning remains subject to considerable debate. The spectrum of scholarly opinion ranges from those who maintain that “practice has now settled” (Dworkin, 1996) and “we live in a world of judicial supremacy,”( Freidman and Delaney, 2011) to those who lament that that “everyone nowadays seems willing to accept the [Supreme] Court’s word as final”(Kramer, 2004).

In RECONSIDERING JUDICIAL FINALITY, Fisher explores whether the Supreme Court does in fact speak the irrefutable last word. After examining the historical record from 1789 to the present day, he finds that Court decisions are anything but final. Contrary to conventional wisdom, the Court’s rulings did not put an end to constitutional dialogues in many disputes. He concludes that “the doctrine of judicial finality often attains the status of myth: a belief widely held to be true but lacking any factual basis” (p. xi). Fisher presents a compelling analysis that demonstrates that the Supreme Court decisions have been regularly challenged in extensive array of disputes. The author devotes a separate chapter for the disputes on the slavery, civil rights and women’s rights, regulating commerce, the sole-organ doctrine, privacy, religious liberty, the Japanese-American cases, the state secrets doctrine, legislative vetoes and campaign finance. According to Fisher, decisions by the Supreme Court lack finality in part “because human institutions, including the judiciary, are prone to miscalculation and error” (p. xi).

The crux of Fisher’s argument in RECONSIDERING JUDICIAL FINALITY is that by no means does the Court always gets its way. Furthermore, the preoccupation with the notion of judicial finality has become a set of theoretical blinders, rendering the fact that the Court shares the field of constitutional authority with other [*19] institutional actors invisible. One of the key contributions of RECONSIDERING JUDICIAL FINALITY is how it persuasively demonstrates that despite the prevailing assumptions, the process of constitutional interpretation is not a judicial monopoly but rather a broad and continuing dialogue. In this regard, RECONSIDERING JUDICIAL FINALITY invaluably draws attention to what has been missing from the debate on the desirability of having a judiciary with the final say on constitutional meaning. Participants in the debate dispute whether an imperial judiciary with the power to have the final say is necessary, but not whether the Court actually has the irrefutable final say. In other words, scholars who juxtapose the Court’s power against Congress have erroneously overemphasized the Court’s dominance while unduly minimizing the constitutional decision-making by Congress.

Readers familiar with Fisher’s previous scholarly contributions can easily recognize that RECONSIDERING JUDICIAL FINALITY shares a common theme of unveiling the myriad ways in which the political branches actually do influence constitutional meaning and how independent interpretation by elected branches has been the norm in our political order (see e.g., Fisher, 1978, 1985, 1988, 2016, 2018). In accordance with his previous works, RECONSIDERING JUDICIAL FINALITY demonstrates that Congress often challenges the limits of the Supreme Court decisions.

I concur with Fisher’s claim that the constitutional vision of the judiciary always triumphing is not empirically accurate. As he explains, the process of constitutional interpretation is much more fluid than generally assumed. However, with any book of such scope a reviewer can find numerous occasions to quibble. And I do have a few quibbles, primary of which is an objection to Fisher's framing of legislative-judiciary relations through a primarily conflictual lens. Looking only at cases in which the Court’s decisions have been challenged and reversed captures a relatively small proportion of interactions between the judiciary and the political actors. In fact, attaching too much weight to the Court’s conflict with elected branches minimizes observations of cooperation (explicit and tacit) between them. Ample scholarly work demonstrates that judicial review can actually help legislators advance their political agendas rather than hindering the exercise of legislative power; in fact the Court’s authority to settle constitutional disputes often expands as a result of the willful empowerment of the judiciary by actors in other branches (see e.g. Graber 1993; Whittington 2009). [*20]