Vol. 34 No. 01 (January 2024) pp. 9-11

ACTUAL MALICE: CIVIL RIGHTS AND FREEDOM OF THE PRESS IN NEW YORK TIMES V. SULLIVAN, Samantha Barbas. Berkeley: University of California Press, 2023. 290 pp. Cloth $ 29.95. ISBN: 9780520385825.

Reviewed by Cary Federman., Department of Justice Studies. Montclair State University. Email:

In 1960, the New York Times published an advertisement, “Heed Their Rising Voices,” written by an ad hoc committee called the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. Through the advertisement, the Committee sought to expose police misconduct that occurred during a sit-in at a lunch counter in Montgomery, Alabama. The advertisement, however, contained a number of falsehoods, and, by inference but not by name, it implied that the Commissioner of Public Safety in Montgomery, Lester Bruce (L.B.) Sullivan, was responsible. Sullivan sued for libel in state court and won a $500,000 award, “the largest libel verdict in the state’s history,” according to Samantha Barbas (p. 2). Both the press and civil rights organizations regarded Sullivan’s victory as a threat to the First Amendment. Civil rights organizations feared reprisals for any criticisms they may make against governmental officials. The press was concerned that other large-sum awards might follow, which would have a “chilling effect” on the freedom of the press. The scope of such awards would prevent journalists from investigating racial conflict in the South or public officials anywhere. Should the Alabama court’s ruling stand, Justice William Brennan wrote for a unanimous Court in New York Times v. Sullivan, the nation’s commitment to “uninhibited, robust, and wide-open” debate would collapse.

Samantha Barbas, a law professor at the University of Buffalo, and a well-regarded scholar of press and speech freedoms, has written a general history of New York Times v. Sullivan. The case lends itself to an interdisciplinary approach. The legal issues are complex, but the case began over an attempt to desegregate lunch counters; Sullivan’s trial was racially segregated; and to say that the trial judge had Confederate sympathies is to put it mildly. As Barbas demonstrates, it is impossible to separate the legal issues from the civil rights movement’s focus on desegregation, integration, and political equality.

Libel is the written defamation of character. There are four kinds: blasphemous, pertaining to religious institutions or persons; obscenity, relating to moral concerns; private, involving individuals; and seditious, concerning libel against the state or state officials. Sullivan is a private libel case involving the defamation of Sullivan’s character. But the Court treated the case as part seditious libel and part private libel. In other words, the decision holds that


Vol. 34 No. 01 (January 2024) pp. 6-8

DIVERSIFYING THE COURTS: RACE, GENDER, AND JUDICIAL LEGITIMACY, Nancy Scherer. New York: New York University Press, 2023. 223 pp. Paperback $30. ISBN: 9781479818723.

Reviewed by Nancy Arrington. Department of Political Science, Cal Poly San Luis Obispo.

In Diversifying the Courts: Race, Gender, and Judicial Legitimacy, author Nancy Scherer addresses why American Presidents have sought (or not sought) to diversify the federal judiciary and then tests whether diversifying the courts has (or has not) shaped perceptions of legitimacy among the public. A key theme is what Scherer terms the “Diversity Dilemma:” if descriptive representation increases the legitimacy of those who are descriptively represented, then increases in legitimacy among women or people of color as the court diversifies are offset by decreases in legitimacy among men and white members of the public. The diversity dilemma suggests that using diversification of the court as a tool to build overall levels of judicial legitimacy among the public may be misguided.

Chapter 1 summarizes the process of diversification of the federal judiciary and addresses how the salient characteristics worthy of diversifying have changed over time. In addition, Scherer tracks the selection of women and judges of color to the US Supreme Court, US Courts of Appeals, and US District Courts from the Roosevelt through Trump presidencies.

Chapters 2 and 3 address Democratic and Republican Presidents’ stances on diversification of the judiciary. For both parties, a key focus is on building the legitimacy of the courts, but the parties diverge in the tactics for doing so. For Democratic presidents, the justification or goal of diversification has changed over time. Scherer explains that President Carter sought diversification as “a means to remedy past discrimination” (p. 27) whereas subsequent Democratic presidents have emphasized descriptive representation, the idea that political offices should generally reflect salient characteristics of the public. President Obama, by emphasizing shared experiences and judicial empathy, “is the first to rely on “descriptive/substantive representation to justify his diversity policy for federal courts” (p. 37).

In describing recent Republican Presidents’ approaches to diversity in the judiciary,


Vol. 34 No. 01 (January 2024) pp. 1-5

HIGH COURTS IN GLOBAL PERSPECTIVE: EVIDENCE, METHODOLOGIES, AND FINDINGS, Nuno Garoupa, Rebecca Gill, and Lydia Tiede. University of Virginia Press, 2021. 362 pp. Cloth $55.00. ISBN: 9780813946153.

Reviewed by Jeffrey K. Staton., Department of Political Science. Emory University. Email:

Garoupa, Gill, and Tiede’s High Courts in Global Perspective: Evidence, Methodologies, and Findings features a collection of essays that take stock of where the field of comparative law and courts is and where it might go. As the title suggests, these assessments are centered on scholarship concerning high courts. The authors explain their choice persuasively, though it nevertheless limits the scope of the volume as so much scholarship in comparative law and courts focuses on other courts and actors in a state’s judicial system. The editors further focus their volume on statistical analyses of high court outcomes, a choice that shifts our attention away from most of the field of comparative law. Still, the global scale of the project and the fact that many of the most important questions in the field can be fruitfully developed in the context of quantitative studies of high courts ensures that the volume still retains the flavor of a general field introduction. Fortunately, the editors provide ample citations to other field summaries, which fill in the spaces that they de-emphasize. If you teach courses on law and courts; if you conduct research on the subject; and, certainly if you advise graduate students, you should own this volume.

As strongly as I recommend the volume, I do fear that you will not find in it simple answers to the field’s most critical challenges. Just as the editors provide a compelling rationale for a robust program of comparative scholarship on law and courts, the volume’s authors together illustrate how the combination of the needed tasks ahead, and professional incentives make the production of the very scholarship that we need extremely difficult to execute. The volume points us in the direction of a solution, but the particulars of how to make this solution viable are left to future thinking. We have a good sense for where we are. We have a general vision of where we ought to go. Sorting out how to get from one point to the other is a task left to the community, which is probably as it must be.

The editors’ primary goals are to ask how courts should be studied comparatively. They search for key barriers to a vibrant comparative literature on law and courts, and they ask how the field might overcome these barriers. The editors argue that a comparative approach to law and courts is essential because several important questions


Vol. 33 No. 07 (November 2023) pp. 89-93

THE SHADOW DOCKET: HOW THE SUPREME COURT USES STEALTH RULINGS TO AMASS POWER AND UNDERMINE THE REPUBLIC, Stephen Vladeck. New York, Basic Books, 2023. 352 pp. Hardcover $30. ISBN: 9781541602632.

Reviewed by Tobias T. Gibson. Department of Political Science. Westminster College (MO). Email:

Stephen Vladeck, the Charles Alan Wright Chair In Federal Courts at the University of Texas Law School, offers in The Shadow Docket what is among the best books about the Supreme Court I have read. This is a timely, well-written, important book. Vladeck’s goal for the book is a simple one: “… to demonstrate that the rise of the shadow docket risks doing serious long-term institutional harm to the Court—and, as such, the country” (p. 25). No small feat, but the goal is met and exceeded.

By the end of the preface and introduction, the reader will learn what type of actions the Supreme Court takes that constitute the “shadow docket;” that the make-up of the Court impacts the frequency of the shadow docket decisions; the breadth of the impact of this type of decision; and, interestingly, an example of how the use of the shadow docket changed the institution of the Supreme Court.

The term “shadow docket” was first used by William Baude (2015) to distinguish between the merits docket and the other, less public decisions made by the Court. Since then, the term has entered the mainstream, to the point that in 2021, Justice Samuel Alito spoke about the damage that the term had on the Court, arguing that the description suggests the justices have become a “dangerous cabal” (xii). Vladeck does not waver, though, and notes that since Baude’s article, the Supreme Court ramped up its use of these decisions, and often were in favor of then-President Trump’s controversial policy initiatives. This is an imperative moment in the book, as there is an institutional impact stemming from these decisions. Because the shadow docket decisions, unlike the merit docket cases, do not come with opinions in which the legal reasoning is explained, “the justices are not only failing to provide guidance to lower courts and government actors but also exacerbating charges of political partisanship” (xiii).

As most readers will know, one of the components of justiciability is whether or not the case is “ripe” for a Supreme Court decision. Importantly, this is a consideration for the justices when they are considering cert. Vladeck notes that this is not true—and indeed, is inverted—in shadow docket cases. Instead of a case that works its way through the judicial system, one type of shadow docket decision called “injunctions pending appeals,” instead “answer complicated (and in some cases, hypothetical) questions of statutory or constitutional law at the outset of litigation” (p. 18, my emphasis). Here, Vladeck is primarily focused on the sharp increase of these actions, especially after Justice Amy Coney Barrett took a seat on the Bench. I think it is important to note that this also undermines the constitutional provision that the Supreme Court decides cases and controversies.

At the heart of the book, Vladeck offers several important history lessons. Chapter one, “The Rise of Certiorari” recounts the Taft (both president and Chief Justice)-era efforts that led to the reforms allowing the justices to decide which cases they hear. This is important for two reasons. First, because the reasoning of these cert. decisions rarely make their way into the public eye, Vladeck’s position is that they constitute a portion of the shadow docket. Second, and more importantly, this chapter offers a history of the modern institution of the Supreme Court—and argues that Chief Justice Taft was at best disingenuous in his reasoning behind the reform effort.

In the second and third chapters, Vladeck offers a stronger look at how the Supreme Court’s use of the shadow docket impacted same-sex marriage and death penalty cases. For example, due to the 2014 cert. denials, “the Supreme Court’s summary, unsigned, and unexplained decisions to stay out of the marriage issue … directly legalized same-sex marriage in eleven states (p. 75).

Regarding death penalty cases, Vladeck notes the obvious impact that the Court’s national ban of the death penalty in Furman V. Georgia and the subsequent lift of that ban in Gregg v. Georgia had on national politics and policy. Less obvious, however, is the impact on the Court itself. Because the Gregg decision required extensive judicial oversight, the Court itself became the place for remedy of death row inmates seeking emergency relief. However, in 1980, the justices ended the formal summer recess, allowing the entire membership of the Supreme Court to be available to make those emergency decisions. Prior to 1980, the emergency relief was subject to hearings by an individual justice. Between 1980 and 2022, there were no hearings—and in something of an irony, “…by moving from in-chambers resolution of emergency applications to resolution by the full Court, the justices as a whole came to provide less process—and less reasoning—than individual justices had previously” (p. 107).

Chapters 4 through 7 focus on the rise of the shadow docket during the Trump administration, and the impact in the few years after Trump left office. While much of this explosion comes directly from the former president, Vladeck explains well the institutional changes to the Office of the Solicitor General and the Supreme Court itself. Chapter four begins with a discussion of the “travel ban,” eventually enacted through a series of executive orders. The travel ban, as (eventually) accepted by the majority of the justices, “set the tone” for the state of the shadow docket while Trump was in office (p. 137). Some of this was a rethinking by the justices about the role of judicial restraint—an idea that began during the Franklin Roosevelt administration related to statutory law, not executive orders. Importantly, this restraint historically was not used in questions related to individual rights—and the Court undermined both of these norms (p. 134). But, some of the retooling of the Court’s impact was the purposeful efforts of the Trump-era Solicitors General. In a nutshell, “… in just four years Trump’s solicitors general sought emergency relief from the Supreme Court a total of forty-one times—a more than twentyfold increase over Bush’s and Obama’s SGs combined” (p. 144).


Vol. 33 No. 07 (November 2023) pp. 94-97

THE STATE, Philip Pettit. Princeton: Princeton University Press, 2023. pp. 376. Hardcover $39.95. ISBN: 9780691182209. Ebook $39.95. ISBN: 9780691244396.

Reviewed by Edward W. Gimbel. Department of Politics, Government, and Law. University of Wisconsin – Whitewater. Email:

Pettit’s The State is a genealogy and examination of the state or polity (he uses the terms interchangeably) in two parts. The first constructs a realist, functionalist genealogy of the state based on a thought experiment, which seeks to establish that if we assume certain plausible preconditions – namely, “where the protagonists are human beings like us and the circumstances allow an approximate balance of power among many members, if not among all” (p. 6) – then a state would be likely to appear. The argument proceeds to outline the functional role of this state, and key elements of its organization directed to ensuring that it serves its functions well. The second part then goes on to answer a series of questions about the state raised by what Petit describes as statist, libertarian, and laissez-faire theories in political philosophy.

The argument Pettit constructs in the first part of his book is realist in two distinct senses. First, Pettit is realistic about the apparent inescapability of the state-system as it currently exists. Barring catastrophe of world historic proportions, we are likely stuck with the state as the dominant form of political organization. As critical as we may legitimately be about the state as a means of organizing political power, it is unclear how any alternate arrangement could plausibly emerge. Second, Pettit rejects an idealist argument that would construct a genealogy of the state as an exemplar of justice. This second form of realism sets Pettit’s argument apart from that of similarly thought experiment-inclined contractarians like John Locke or contemporary political and moral philosophers like John Rawls. In Pettit’s view, the emergence and perseverance of the state must be due to its serving key functions. While these functions may be consistent with the pursuit of justice and indeed may provide the basis for such a pursuit, justice itself is not the function of the state.

Beyond rejecting the “just-so” stories of incorporation told by contractarian thinkers, Pettit also eschews a narrative where agreement on key principles emerges or is imposed in situ as a more or less finished product. Instead, Pettit’s genealogy is “emergentist” insofar as it seeks to justify the emergence of the state regardless of a range of possible contingencies. His approach here is appropriately painstaking as the goal is to justify the emergence of the state as not merely possible, but rather, likely or even, in Pettit’s terms, robustly likely (p. 22). The emergence of the state proceeds in stages, beginning with prudential forms of agreement between members of a community. Pettit begins with the emergence of convention, drawing on and in dialogue with David K. Lewis’s 1969 treatment, and progresses to norms. In each case, he outlines how conventions, then norms, are likely to emerge first as a set of social strictures that it is in the participant’s self-interest to acknowledge, then as constraints that require conformity in the manner of a command with the backing of the community. Additionally, within each case, the individual comes to submit to such strictures even if these limitations on individual behavior may seem to work against the narrow self-interest of the individual.

From conventions, through norms, Pettit’s genealogy reaches a central theme with the emergence of law. Where Lewis was the key figure in Pettit’s discussion of convention, H.L.A. Hart is his primary interlocutor in the treatment of the emergence of law. The norms outlined in Pettit’s genealogy that require individuals to act in a particular way whether they would like to or not align with Hart’s notion of “primary rules.” Beyond this, “secondary rules” “provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations” (Hart, 81). Hart notes – and Pettit sets out to demonstrate – that the emergence of these secondary rules marks the transition from a pre-legal into a legal world. Importantly for Pettit, though, this emergence neither requires nor implies the prior establishment of state authority. “There is no reason to think that a law-bound society could come into existence only because of the initiatives of an independently established polity or state” (p. 53).

This idea is central to Pettit’s argument in part because once the difficult genealogical work of tracing the emergence of law is done, the argument for the emergence of the state in something like its present form follows as a matter of course. In Pettit’s genealogy, it is more accurate to describe “the polity as the precipitate of law.” In short, in Pettit’s telling, the skeletal state implied by the existence of a legal system evolves to become a full-fledged state in a form that we would recognize today because it fulfills key functions or, put differently, it solves otherwise insoluble problems. These problems and their solution will be familiar to readers of Hart: the problems include compliance with the law, competition among those who might exercise coercive power, and a range of issues associated with the polity’s existence in a world of other actors, i.e. the problems of international relations. The solution to these problems is identical to the function of the state. As Pettit succinctly puts it, “The function, in the classic phrase, is the promotion of salus populi: the safety of the people, domestic and international” (p. 113).


Vol. 33 No. 07 (November 2023) pp. 98-103

REGIME CHANGE: TOWARDS A POST-LIBERAL FUTURE, Patrick Deneen. New York: Sentinel. 2023. pp. 269. $30.00, ISBN 978-0-593-08690-2.

Reviewed by Mark Rush. Department of Politics, Washington and Lee University. Email:

In Regime Change, Patrick Deneen offers a vision of a postliberal future that would, essentially, turn back the clocks of the last few hundred years of liberal democracy. And, he does all this in a scant 260 pages. Needless to say, this is an ambitious work and project. As well, Regime Change really can’t be discussed without touching upon Deneen’s prior work, Why Liberalism Failed which provides the foundation for his discussion of a postliberal future. In this regard, much of Regime Change has already been discussed in reviews of and reactions to the diagnosis of liberalism that Deneen offers in the former work. It departs from—or, at least, gets out of the glare of--the prior commentary when Deneen essentially picks up the gauntlet he threw at himself and looks to describe a postliberal future and prescribe how to get there.

The importance of this work is manifested in the nature of its critics. President Obama tipped his hat to Why Liberalism Failed by saying:
In a time of growing inequality, accelerating change, and increasing disillusionment with the liberal democratic order we’ve known for the past few centuries, I found this book thought-provoking. I don’t agree with most of the author’s conclusions, but the book offers cogent insights into the loss of meaning and community that many in the West feel, issues that liberal democracies ignore at their own peril. (
Other reactions to Regime Change have been equally powerful, eloquent, and voluminous because, in many cases, they emanate from denizens of the privileged classes that he criticizes (e.g., Szalai, 2023). Those with the educational opportunities, wealth, or simply the capacity to absorb the opportunity cost to challenge Deneen have done so. Those on whose behalf he advocates—the working classes, the “deplorables” described by Hillary Clinton, or, simply those but for the grace of gods or fate would have had access to the opportunities that elites have had—simply don’t have the time, skill set, or access to platforms that would enable them to celebrate with the same volume, eloquence, and tenor. These are the folks that Salena Zito covers in her journalism (Zito and Todd, 2018).

Whether liberal democracies are, as Obama suggests, “ignoring” Deneen’s analysis or simply blind to it is less important than the fact that his description of politics in the USA and, perhaps, the global north is accurate. In the name of “progress”, liberalism “has generated a particularly virulent form of that ancient divide that pits ‘the few’ against ‘the many’” (x). In response, the masses have arisen in electoral revolts described by elites as “populist”. This is not news.

Scholars across the disciplines note that the seeds of contemporary revolts were sewn not by demagogues, but by the same elites Deneen criticizes. Scholars such as Thomas Piketty (2017) and Branco Milanovic (2016) demonstrate that private capital accumulation and globalization have had disproportionately positive impacts on the global well-to-do and equally negative impacts on global have-nots. While the world may have become more equal, inequality within nations has become worse and resulted in those populist revolts.