Vol. 26 No. 4 (August 2016) pp. 82 – 84

VOTERS’ VERDICTS: CITIZENS, CAMPAIGNS, AND INSTITUTIONS IN STATE SUPREME COURT ELECTIONS, by Chris W. Bonneau and Damon M. Cann. Charlottesville: University of Virginia Press, 2016. 163pp. Cloth $40.00 ISBN: 978-0813937595

Reviewed by Todd A. Curry, Department of Political Science, University of Texas, El Paso. Email:

Chris Bonneau and Damon Cann are familiar names for those individuals who are interested in the research on state courts, and specifically, judicial elections. They, like many of us in the field, have in part oriented their research agenda around a simple premise: when someone important or influential says something with absolutely zero empirical backing, design a study to examine if they are correct. In the sub-field of state judicial politics, with the myriad of ways states select their judges, there is no dearth of commentators, spectators and even participators who regularly make their opinion known as to the perceived deficiencies of the selection mechanism they like least. This provides good, if common, fodder upon which to build numerous research projects. However, what differentiates this book, and makes it exceedingly valuable, is that instead of relying on aggregated data which is exceedingly common when studying state courts, Bonneau and Cann examine familiar questions at the micro level, through individual data.

While aggregate level data have led us to numerous insights about state courts, there has been difficulty demonstrating causality because of the lack of micro level data. For example, researchers have demonstrated that ballot roll-off was on average, highest in states that use retention elections (when compared to partisan and non-partisan elections), but the lack of individual level data prevented them from claiming that it was retention elections that were causing ballot roll-off.1 That is, without individual level controls on individual level data, we could only examine the occurrence in the aggregate, unable to demonstrate that an institution which provides no information to the voter in the form of party identification and simultaneously denies the voter the choice of an alternative candidate systematically causes ballot roll-off.

As such, the true strength of this book is the wealth and variety of the data used to examine judicial elections. The authors use both the 2010 and 2012 Cooperative Congressional Election Study (CCES), experiments carried out with a diverse body of undergraduates, and experiments from Mechanical Turk (Mturk). These data allow the researchers to examine the individual causes of vote choice and ballot roll-off, and the effects of campaign cues, including incumbency, all under a rich level of institutional variation. It provides for a robust book, which may border on being a bit data heavy.

The book begins with an introductory chapter that describes the methods of judicial selections used within the states, with a primary focus on judicial elections. Three types of election mechanisms are used to staff high courts in the states. Partisan elections are identical to congressional elections, with candidates being chosen in a party primary to then face off during the general election. Non-partisan elections share many similarities with partisan elections, however, they lack a significant cue to voters, namely the appearance of partisan identification on the ballot. Retention elections are different. Retention elections are defined by a lack of contestation. Candidates run in what amounts to a referendum on their judgeships, with the only options available to voters are a yes or no vote to retain.


Vol. 26 No. 4 (August 2016) pp. 78 – 81

JUDGING JUDGES: VALUES AND THE RULE OF LAW, by Jason E. Whitehead. Waco: Baylor University Press, 2014. 253pp. Cloth $49.95. ISBN: 9781602585256.

Reviewed by Keith J. Bybee, College of Law and Maxwell School of Citizenship and Public Affairs, Syracuse University. Email:

We often praise those judges we admire as being impartial champions of the rule of law. The problem, as Jason Whitehead notes in his engaging book, is that we “have no systematic and rigorous way to distinguish between judges who uphold the rule of law and judges who undermine it” (p. 3). We prize legal fidelity in our judges yet we have no widely agreed
upon means of determining what fidelity to law is. As a result, we are left with the suspicion that “the difference between good and bad judges is a matter of personal preference and that the rule of law is a mere platitude designed to disguise the preference as a principle” (p. 3). Whitehead seeks to better define how judges sustain the rule of law, and to counter the suspicion that the only distinction between good and bad judging is the preference for a particular outcome.

As a first step toward these goals, one might argue that we should examine judicial decisions to see if they conform to legal requirements. A rule-of-law judge would be one whose rulings appear to have been dictated by existing law. Whitehead rejects such an “outside in” approach on the grounds that it overlooks judicial motivation. Two judges may arrive at the same outcome in a given case, but one judge may do so on the basis of sincere belief about what the law demands while the other may merely supply a legal rationalization for a position determined on extra-legal grounds. The crucial difference between such judges is not in the conclusions that they reach, but in the different sensibilities and values that each judge brings to the case. Thus, to accurately appraise the judiciary and its relationship to the rule of law, Whitehead calls for an “inside out” assessment of judicial beliefs and ideals.

Whitehead frames his inside-out assessment in terms of social practice. He sees judges as situated in immersive, long-term interactions with the professional legal community and with legal language. The purposes judges acquire through their community and doctrinal engagements are pursued according to shared standards of excellence—a common core of virtues that judges absorb as they enact and advance fidelity to law. All parts of the judicial social practice are bound together into a way of life: it is through the community they inhabit, the language they use, and the standards of excellence they follow that judges generate a meaningful sense of obligation and mission.

Whitehead argues that individual experiences with judicial social practice vary, and “not every judge internalizes the attitude of fidelity in the same way or to the same extent” (p. 26). In particular, Whitehead argues that the differences in overall attitude fall into four different value types: Formalist, Good Faith, Cynical, and Rogue. Whitehead devotes one chapter to each value type (these four chapters constitute the bulk of the book). In each chapter, Whitehead elaborates and examines the components of each value type by drawing on informal, confidential interviews that he conducted with 24 state and federal appellate judges in three different states. The many quotations that Whitehead pulls from his interviews are quite interesting, and they add real depth to his analysis.


Vol. 26 No. 4 (August 2016) pp. 75 – 77

NAVIGATING THE JUNGLE: LAW, POLITICS, AND THE ANIMAL ADVOCACY MOVEMENT, by Steven C. Tauber. New York: Routledge, 2016. 212 pp. Cloth $155.00. ISBN: 9781612051284. Paper $49.95. ISBN: 9781612051291.

Reviewed by Paul M. Collins, Jr., Department of Political Science, University of Massachusetts Amherst. Email:

Scholars have long been interested in understanding social movement litigation. Early studies, such as Vose (1959), tended to focus primarily on the effectiveness of organizational litigation in terms of case outcomes. When Scheingold (1974) suggested that interest group litigation was based on a “myth of rights,” scholars began to recognize the limits of using litigation to achieve social change in their analyses of legal mobilization (e.g., McCann 1994). This included focusing not only on how interest group litigation influences legal outcomes, but also on less obvious form of influence, such as public support for a movement.

In NAVIGATING THE JUNGLE: LAW, POLITICS, AND THE ANIMAL ADVOCACY MOVEMENT, political scientist Steven C. Tauber makes an outstanding contribution to our understanding of social movement litigation. Focusing on the battle over animal rights and welfare, Tauber documents the struggles that animal advocacy groups face in using the court system to promote the well-being of animals. In addition to looking at how litigation by animal advocacy groups shapes judicial decision making, Tauber investigates how this form of lobbying influences media coverage of animal advocacy issues. By combining rich qualitative analyses with statistical models, Tauber demonstrates the myriad means by which political forces shape the development of animal law.

As the book explains, Tauber has played a role in the animal advocacy movement as a member and advisor to the Nonhuman Rights Project, a group whose goal is to establish legal rights for animals. This has provided the author with somewhat unusual access to several of the movement’s key actors. Though direct involvement with a movement always has the potential to shape the conclusions drawn from the study of that movement, this involvement has not colored the interpretations of the data presented in the volume. Rather, Tauber lets the data guide his understanding of the success of the movement.


Vol. 26 No. 4 (August 2016) pp. 71 – 74

JUDGING POSITIVISM, by Margaret Martin. Oxford and Portland, Oregon: Hart Publishing, 2014. 185pp. Cloth $77.00. ISBN: 9781849460996.

Reviewed by John H. Bogart, University of Utah S.J. Quinney School of Law and Principal, Telos VG, PLLC. Email:

The task Prof. Martin sets for herself in JUDGING POSITIVISM is an assessment of Joseph Raz’s work in philosophy of law. The book is provocative and interesting throughout. It is well-written, not unduly burdened with footnotes or terminological quibbles, and is, as promised, appropriate for both students and academics. The book succeeds in a number of ways: It provides a general account of the Raz’s arguments spread over a number of books written at different times. The exposition of the objects of analysis is generally clear and fair. The footnotes, which are judicious, provide the necessary references to specific works by Raz and to key works of Raz’s interlocutors. Prof. Martin’s work repays the effort of careful reading.

JUDGING POSITIVISM has seven chapters. The first five chapters are organized around central texts by Raz (Chapters 1, 4, and 5) or key ideas of his philosophy of law (Chapters 2 and 3), although these lines are, in practice, blurry. Chapter 1 covers Practical Reason and Norms and the introduction of law as a set of exclusionary reasons. Chapter 2 focuses on the sources thesis (whether a norm is a legal norm depends on its source) with significant discussion of the theory of judicial reasoning. Chapter 3 focuses on the claims of the autonomy or authority of law. Chapter 4 returns to authority and exclusionary reasons as developed in The Morality of Freedom. Chapter 5 discusses the degree to which Raz’s theory regarding source thesis, autonomy, and authority of law can or do fit together. Chapter 6 is a departure: Professor Martin offers up some thoughts about an alternative way of conceiving of the methodology and problems of philosophy of law. The final chapter reads as a summary of the preceding six chapters tied to an exchange between Raz and Gerald Postema.

Martin’s project is an expressly critical one, in both senses. She aims to illuminate fundamental defects in Razian legal positivism, to show that Raz’s account collapses of its own inconsistencies. This will open the door to some form of natural law theory, although the content of that theory is outside the scope of Prof. Martin’s book. Let me turn now to sketching some of Prof. Martin’s central arguments and conclusions.


Vol. 26 No. 4 (August 2016) pp. 65 – 70

PROPERTY RIGHTS AND NEOLIBERALISM: CULTURAL DEMANDS AND LEGAL ACTIONS, by Wayne V. McIntosh and Laura J. Hatcher (eds.). Farnham, UK: Ashgate, 2010. 234pp. Hardback $134.95. ISBN: 978-0-7546-7892-2.

Reviewed by Daniel Tagliarina, Department of Government and Politics, Utica College. Email:

Neoliberal efforts to reform government and property rights have been with us for a while now. KELO V. CITY OF NEW LONDON (2005) has become a neoliberal touchstone regarding the claimed irresponsible use of governmental power in violation of individual property rights. The KELO ruling sparked a widespread backlash that includes: actions by at least 42 states to change their eminent domain laws via statute or constitutional amendment (p. 71), close to 1,000 law review articles (based on a non-discerning LexisNexis search), a book-length journalistic account by Jeff Benedict titled LITTLE PINK HOUSE (2009), and a forthcoming feature-length film also titled LITTLE PINK HOUSE (Somin 2014). Clearly, the case touched a nerve. Moreover, it provided mobilization fodder for neoliberal causes that found willing partners in the Bush administration, leading to vast deregulation efforts that, in some people’s estimation, contributed to the Great Recession beginning in 2007 (e.g., Braedley and Luxton 2010).

While legal scholars generally agree that KELO did not mark any real departure from previous eminent domain precedent (p. 66), the case still stands out as an important moment in the neoliberal effort to strengthen individual property rights. I begin with KELO, because, to a large extent, that is where PROPERTY RIGHTS AND NEOLIBERALISM begins. While the volume is not only about KELO, the case does play a central role in many of the chapters, either as the explicit focus—as in Thorpe et al.’s and Wilkerson’s chapters—or an implicit role—as in Becher’s and Brisbin, Hunter, and Leyden’s chapters. In constructing the edited volume, McIntosh and Hatcher explicitly focus on property rights in the context of changing regulatory schemes, which is a focus that heretofore has been missing in the literature (p. 4). The chapters in this volume are all well-written, and draw upon quality evidence and relevant scholarship as they examine how law is changing in response to various neoliberal reform efforts. Moreover, the chapters contribute to the central theme by examining the effects of institutional contexts and cultures on the actual legal mobilization around property rights when what constitutes property—and how it should be conceptualized—is a moving target. The volume’s underlying cohesion is around our understanding of contemporary property rights.

PROPERTY RIGHTS AND NEOLIBERALISM is divided into three parts. Part I consists of four chapters, and is organized around questions of legal mobilization, eminent domain, and property rights. Part II offers a comparative analysis to the volume with three chapters that explore neoliberal efforts to create property rights where they did not previously exist (Henderson’s and Boggio’s chapters) or to limit governments’ ability to regulate property (Clark and Harrington’s chapter). Part III contains three chapters that takes a broader look within the United States context to see how non-judicial actors and contexts shape our understanding of property and the law surrounding property rights. These chapters, collectively address what the editors identify in the introduction as “three primary issues: (1) the contours and characteristics of property rights mobilization(s); (2) the degree to which property rights movements have influenced development [*66] of law in demonstrable ways; and (3) the broader cultural, social and economic implications of modern-era property rights litigation and legal mobilizations” (p. 4-5). While neoliberalism is one of the central organizing concepts for the edited volume, not all of the authors offer clear, comprehensible definitions of what they understand neoliberalism to be. This is not surprising as, in the words of the editors, neoliberalism is “notoriously difficult to define” (p. 2). To aid the uninitiated, the editors draw on Harrington and Turem (2006) to define neoliberalism as, “‘the (re)emergence of the market and economic rationale as the dominant organizing logic in society’” ((p. 2), quoting Harrington and Turem 2006, 204)).


Vol. 26 No. 4 (August 2016) pp. 62 – 64

LATINOS AND THE VOTING RIGHTS ACT: THE SEARCH FOR RACIAL PURPOSE, by Henry Flores. Lanham, MD: Lexington Books, 2015. 318pp. Cloth $100.00 ISBN: 0739190458.

Reviewed by Mark Kessler, Department of Multicultural Women’s and Gender Studies, Texas Woman’s University. Email:

This impressive and important volume explores some of the ways in which law has been used in recent times to disempower minority voters and distort democracy in the United States. Specifically, it focuses on the role that race and racism played in redistricting plans and the passage of a voter identification law in the state of Texas in 2011. Both of these actions were challenged in federal courts as violations of the Voting Rights Act and provide opportunities to examine them in relation to voting rights litigation more generally.

The book’s author, Henry Flores, is a Distinguished Research Professor of Political Science at St. Mary’s University in San Antonio, Texas. Flores brings to his analyses almost thirty years of experience as an expert witness in voting rights cases. The core of this book is based on his recent experiences serving as expert witness for the Mexican American Legal Defense and Educational Fund, charged with the responsibility to use his knowledge of social science to address the issue of racial purpose or intent in redistricting plans and the voter identification law. Flores provides an insider’s view of this litigation and produces a richly detailed and nuanced narrative based on voluminous documentary evidence related to both cases.

Flores skillfully places recent voting rights litigation in a useful legal-historical context, focusing especially on the Supreme Court’s decision in 1977 in VILLAGE OF ARLINGTON HEIGHTS V. METROPOLITAN DEVELOPMENT CORPORATION. In that case, the Court announced that government action was not discriminatory and in violation of the Fourteenth Amendment’s Equal Protection Clause if it merely has a “disproportionate impact” on a racial group. Successful arguments that government action is discriminatory, the Court suggested further, must show that the government acted with a “racially discriminatory intent or purpose” (xii). The author suggests that the documentary evidence—evidence that included email communications among the parties—provides clear, compelling, and direct evidence of a racial intent and purpose in Texas’ redistricting plan. However, the documents for the voter identification law that he closely read include no clear and direct discussion of race among participants.

In response to the standard announced in ARLINGTON HEIGHTS, Flores, both as expert witness and as scholar, is interested in exploring the possibility that racial intent and purpose exists, where explicit reference to race is missing in the documentary evidence. This interest leads the author to develop an innovative methodological approach, relying on both quantitative and qualitative techniques, to examine racial dynamics in the consideration and passage of the voter identification law. Flores’ compelling approach to exploring racial intent and purpose in the law focuses on social, political, and discursive histories, relations of power and privilege, the use of coded, indirect references to race, political behavior, and legislative maneuvers to demonstrate how a racial purpose underlies the voter identification law in Texas.


Vol. 26 No. 3 (July 2016) pp. 58-61

JUDGING FREE SPEECH: FIRST AMENDMENT JURISPRUDENCE OF US SUPREME COURT JUSTICES, by Helen J. Knowles and Steven B. Lichtman (eds). New York: Palgrave Macmillan, 2015. 288pp. Cloth $110.00. ISBN: 9781137434913. Paper $30.00. ISBN: 9781137434906.

Reviewed by Wayne Batchis, Department of Political Science, University of Delaware. Email:

When we delve into the weeds to address topics in constitutional law, we tend to talk about “the Court.” The reason is clear. If the goal is to understand, for example, a particular doctrine derived from the First Amendment, we generally need to know the rules of the game, articulated over the years by majority opinions. JUDGING FREE SPEECH changes the conversation. The entries – by an impressive array of scholars – instead each focus our attention on the First Amendment jurisprudence of one particular justice. The result is a concise, thoughtful and illuminating volume of essays on nine select members of the Supreme Court (past and present), highlighting each justice’s distinctive approach to the freedom of expression.

The book also thankfully defies the unfortunate, but at times deserved lament that academic writing must necessarily be inscrutable and abstruse. The entries in this collection provide a genuinely enjoyable read, light on the jargon with amble helpings of colorful substance. More importantly, this volume demonstrates that political scientists can “do” law, and do it well. The majority of contributing scholars are political scientists who – refreshingly, in my opinion – take law and doctrine seriously, while at the same time offering a brand of analysis that is broader than what one might find in the pages of a typical law review.

I must admit, I found the choice of justices profiled a bit haphazard. I would have perhaps preferred that the book maintain its focus on the current – or at least modern – Court, rather than dedicating several chapters to the jurisprudence of justices long gone. In many cases, I found that the chapters on contemporary justices were more likely to offer fresh insights.

The final chapter, for example, penned by Harvard Law professor Mark Tushnet, offers an important, not merely informative, synthesis of Stephen Breyer’s First Amendment jurisprudence. Breyer is a critical First Amendment player on the current Court. For good or ill, his approach to free expression is on cusp of becoming vastly more influential as the death of Justice Scalia, sharp ideological division, and a pivotal presidential election coalesce to make a dramatic shift on the Court likely. Many agree that the current Court is highly responsive to First Amendment claims, perhaps more so than it has been at any time in its history. In some ways the left and right flanks of the Court have come together on free speech. However, Breyer’s distinctive, legislative-like approach, described with insight and clarity by Tushnet, is a sharp contrast with the categorical, tradition-oriented approach preferred by the Chief Justice and other conservatives. Tushnet explores how Breyer’s First Amendment approach is tethered to his pragmatic conception of what is needed for a democratic society to thrive.

As the editors point out in their conclusion, there is some suggestion that other justices, particularly Justice Kagan – whose First Amendment track record has been somewhat limited up to this point – may be willing to follow in Breyer’s footsteps. The next few years could be pivotal for the future of First Amendment jurisprudence. The path the Court takes on free speech matters may determine the Amendment’s meaning for decades to come.

Like Tushnet’s chapter, Helen J. Knowles also provides an important profile of the First Amendment jurisprudence of a current justice. Indeed, Knowles’ chosen jurist is arguably the [*59] most consequential free speech justice on the contemporary Court. Anthony Kennedy may be best known as a “swing justice” for his propensity to align himself with both the liberal and conservative justices in high profile 5-4 decisions, but as Knowles points out, his First Amendment record has been anything but inconsistent. Kennedy stands out for his libertarian perspective, and even a casual student of First Amendment case law would likely observe Kennedy’s tendency to author highly speech-protective decisions.


Vol. 26 No. 3 (July 2016) pp. 54-57

RELIC: HOW OUR CONSTITUION UNDERMINES EFFECTIVE GOVERNMENT AND WHY WE NEED A MORE POWERFUL PRESIDENCY, by William G. Howell and Terry M. Moe. New York: Basic Books, 2016. 256pp. Cloth $26.99. ISBN: 9780465098583.

Reviewed by Graham G. Dodds, Department of Political Science, Concordia University. Email:

Complaints about governmental dysfunction in the U.S. have been commonplace for some time. In RELIC, well known political scientists William Howell and Terry Moe contend that many current problems – like Congress’s apparent inability to enact urgently needed commonsensical policies – are mere symptoms, the true causes of which are rooted in the Constitution. Specifically, they claim that Congress occupies the central position in the federal government but is deeply dysfunctional, they see Congress’s many shortcomings as inevitable because they are hard-wired by the Constitution, and they argue for changing the Constitution to make the presidency more powerful and prominent.

The book’s first chapter is devoted to examining the Constitution, which Howell and Moe say was designed by people who were very different than us and for times that were very different than ours. They note that the founders believed in inequality (per republicanism and race) and that their values “are not the values of modern America” (p. 8). They also say that the Constitution was designed for a “premodern” world (p. 23) and that it is truly a relic “wholly out of sync with modern society” (p. 24). But the authors do not entirely fault the Constitution or its authors for this state of affairs; they also fault the American people for failing to update a document that is so outmoded.

Howell and Moe contend that in the early twentieth century progressives managed to make the antiquated constitutional regime work effectively, by weakening political parties and the separation of powers while strengthening administration and the presidency. But they also argue that the Progressives’ success was limited, later eroded, and that the many subsequent changes in American society over the past century require a different approach to resolving “the disconnect between government and society” (p. 45).

In the second chapter, Howell and Moe examine Congress, which they see as the central part of American national government, and they find it wanting. They contend that Congress never really worked well, that even in the supposed good old days of the 1960s it was not altogether functional, and that Congress is “increasingly archaic” (p. 51). This is not due to the particular individuals who comprise Congress, it is the result of institutional influences on members’ behavior. Because of the way the Constitution set up Congress and its electoral incentives, members of Congress are profoundly “parochial” or blind to concerns beyond their home districts or states, they are “myopic” or focused only on short-term consequences, and in terms of public policy they care only “about the pieces, not the whole” (p. 55).


Vol. 26 No. 3 (July 2016) pp. 50-53

IMPERIAL FROM THE BEGINNING: THE CONSTITUTION OF THE ORIGINAL EXECUTIVE, by Saikrishna Bangalore Prakash. New Haven, CT: Yale University Press, 2015. 454pp. Cloth $45.00. ISBN 9780300194562.

Reviewed by Louis Fisher, Scholar in Residence at the Constitution Project and Visiting Professor, William and Mary Law School. Email:

From the title of the book and early chapter headings (including “A King Under the Title of President” and “Constituting ‘His Highness’ the President”), readers might think that Saikrishnam Bangalore Prakash is offering the U.S. President as a replica of William Blackstone’s king, who had power over all external affairs, including the power to declare war, make treaties, and to appoint ambassadors. But the Introduction of Imperial from the Beginning quickly belies that. “When Presidents exercise the right to decide whether the United States will wage war,” (p. 3). Prakash writes, “they act contrary to the original Constitution. . . . The Constitution grants many traditional executive powers to Congress, such as the power to decide to wage war” (p. 3). Prakash notes that “executive privileges and immunities, while fitting in more thoroughly regal systems, are best seen as foreign to the Constitution’s republican monarchy” (p. 4). The term “republican monarchy” is in obvious tension, sounding more like an oxymoron. Why would Prakash describe a system of self-government and separation of powers, operating through checks and balances, as a monarchy?

In discussing the Constitution’s framework for foreign affairs, Prakash acknowledges that many of the Framers “believed that the English Constitution ceded too much foreign affairs power to the Crown and that some aspects of foreign affairs had legislative overtones (such as the war power)” (p. 111). In drafting the Constitution, a number of exceptions “to the grant of executive power ensured that the President would have fewer foreign affairs powers than the English monarch” (p. 111). Under an 18th-century English legal principle, the Crown could “do no wrong.” Americans, as Prakash notes, “knew from experience that he could” (p. 221). They would also learn the capacity of Presidents to do wrong.

Still, Prakash occasionally reintroduces the theme embodied in the book’s title, such as when he writes: “The picture that emerges from the founding era is of an elective monarch, constitutionally limited in a number of significant ways” (p. 10). He claims that “the Constitution’s presidency was redolent of monarchy,” (p. 13) while admitting that, “[f]or many, monarchy implies life tenure, with heirs succeeding to the throne. . . . Monarchy implies singularity; where authority is split among many, one is tempted to say that there is no monarch” (p. 13). What is gained by using the word “monarch”? What evidence justifies its use?

As Prakash correctly notes, the Senate in 1789 debated whether to the President should be styled “His Highness the President of the United States of America and Protector of the Rights of the Same.” An alternative proposal was “His Excellency.” Prakash does not mention that a House committee strongly opposed these titles, believing that “it is not proper to annex any style or title to the respective styles or titles of offices expressed in the Constitution.” (ANNALS OF CONGRESS 1789, 331). Representative Thomas Tucker of South Carolina said that, if Congress intended to vote on such titles, it should add “an embroidered robe, a princely equipage, and finally, a crown and hereditary succession.” He added, “This spirit of imitation, sir, this spirit of mimicry and apery will be the ruin of our country. Instead of giving us dignity in the eye of foreigners, it will expose us to be laughed [*51] at as apes” (ANNALS OF CONGRESS 1789, 333).


Vol. 26 No. 3 (July 2016) pp. 47-49

THE CASE AGAINST THE SUPREME COURT, by Erwin Chemerinsky. New York: Viking Penguin, 2014. 400pp. Cloth $30.00. ISBN: 9780670026425. Paper $18.00. ISBN: 9780143128007.

Reviewed by Gary E. Bugh, Department of Political Science, Texas A&M University-Texarkana. Email:

In THE CASE AGAINST THE SUPREME COURT, Erwin Chemerinsky presents a scathing critique of the Supreme Court for failing to carry out its most important responsibilities at critical moments. What are these functions, where do they come from, why has the Court inadequately performed them, and what could help the Court do a better job? Chemerinsky asserts “that the two preeminent purposes of the Court are to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities” (p. 10). He argues that these obligations—as well as the Supreme Court’s history of unsuccessfully fulfilling them when they were most needed—derive from the Constitution. However, rather than amend the Constitution or remove judicial review from the courts, his proposed solution for the Court’s incompetency is to enact several statutory-level reforms.

While the Constitution does not expressly describe the Court’s two primary duties, Chemerinsky holds that it logically supports them. He explains that the design of the Constitution—its separation of powers, civil liberties protections, and near invulnerability from alteration—is meant keep an impassioned majority from harming minority rights and the Constitution’s “basic values” (p. 9). The Constitution also guarantees justices’ tenure and salaries, further insulating the Court from the majority. Consequently, “[j]udges with these protections, it always has been hoped, will be more likely to safeguard minorities and enforce the Constitution against repressive desires than government officials who are elected and are accountable to the voters” (p. 10).

In reviewing different historical and contemporary areas of constitutional law, Chemerinsky lays bare the Court’s record of repeatedly failing to take a stand for constitutional rights and principles. The history of the Supreme Court is characterized by decades-long support for government-sanctioned slavery, racial segregation, corporate favoritism, and suppression of speech during times of crisis. “Throughout American history,” Chemerinsky writes, “the Court usually has been on the side of the powerful—government and business—at the expense of individuals whom the Constitution is designed to protect” (p. 10). He acknowledges that the Court has occasionally performed admirably, as in BROWN V. BOARD OF EDUCATION (1954), but such instances are rare and generally limited. Even the Warren Court does not escape Chemerinsky’s critique, and he details throughout Chapter 4 how “it did so much less than it needed to and should have done, even in the areas of its greatest accomplishments” (p. 155). In other chapters he eviscerates the current Roberts Court, describing how it favors the powerful over citizens in several areas from generic drug manufacturers to voting rights.

The vague and broad language of the Constitution, Chemerinsky argues, is behind the Court’s inability to fulfill its responsibilities. At one level, he observes that the Constitution’s general language makes it possible for Americans of different ideologies to consent to the constitutional system. However, he maintains that at the level of the Court, it invites justices to rely not on the law or text of the Constitution when making decisions, but “on their own values, views, and prejudices” (p. 10). Problematic with the justices having so much leeway is that they have historically swung in [*48] favor of elite preferences. This is no wonder, he continues, because most justices are among the elite. As he elaborates, “it is striking how similar the educational backgrounds of the justices are and how many of them come from relatively privileged families” (p. 294). The justices’ reliance on “making a value choice” explains the Court’s inconsistent use of standards that it could use to protect minority rights and limited representative government, such as “compelling government interest” (p. 339).

However, there may be more to the explanation of why the Court’s history is not one of fighting for equal citizenship and constitutional values. Expecting the Court to be the leading defender of citizen rights and government restraints may not be realistic. After all, it is part of government. Chemerinsky leaves out the important role that mass movements have played in pressuring government to uphold civil rights and civil liberties. In his argument, the relationship works the other way around, with an independent Court driving popular movements. He even claims at one point that “[t]he Court’s desegregation decisions helped spur the civil rights movement and the adoption of landmark civil rights laws in the 1960s” (p. 53). Yet, Chemerinsky has some difficulty holding to his autonomous view of the Court, mentioning that “the justices live in society and thus are likely to reflect its attitudes and values at any point in time,” and agreeing with Mark Tushnet’s (1999) argument that the courts tend to go along with “the dominant national political coalition” (pp. 293–94). Nevertheless, Chemerinsky’s defense of his thesis presents an alternative to political perspectives of the Court, including Tushnet’s (2010) regime-centered theory. It also provides many valuable insights.