Vol. 27 No. 6 (July 2017) pp. 101-104
AMERICAN COURTS EXPLAINED: A DETAILED INTRODUCTION TO THE LEGAL PROCESS USING REAL CASES, by Gregory Mitchell and David Klein. St. Paul, MN: West Academic Publishing. 2016. 247pp. Softbound $49.00. ISBN 978-1-63459-879-8.

Reviewed by Christopher P. Banks, Department of Political Science, Kent State University. Email: cbanks6 [at]

AMERICAN COURTS EXPLAINED uses two actual cases, COMMONWEALTH OF KENTUCKY V. WOODALL (a criminal case) and PROMOTION IN MOTION V. BEECH-NUT (a civil case) as the basis for taking students through a detailed examination of the adversarial process from start to finish. Designed as a stand-alone or supplemental text, it differs from other judicial process textbooks that present course material in a more conventional format that typically analyze topics such as the nature and origins of law, judicial organization, judicial selection, the legal profession, criminal and civil litigation, and appellate decision-making, and judicial policy-making. While most, but not all, of those areas of study are addressed by Mitchell and Klein, their exploration is contextualized within the framework of the Woodall kidnapping, rape and murder trial, and the Beech-nut breach of contract and warranty civil action. In a rather unique way, the book discusses relevant concepts by detailing the “law of procedure” underlying each case, thereby elucidating “how cases get filed in court and how they progress through the state and federal courts.” (p. 202). In short, the main cases serve as the template to analyze select topics within the judicial process in an effort to underscore their conceptual significance to the study of law and courts, and politics in general. Moreover, in the preface the authors explain that the book is a “descendant” (p. iii) of Daniel Meador and Mitchell’s AMERICAN COURTS, a casebook that is used in law schools and part of West’s American Casebook series. In this sense, AMERICAN COURTS EXPLAINED is an analogous textbook that is aiming for a share of the undergraduate liberal arts market.

In order to accomplish its aims, the first chapter logically introduces students to the WOODALL criminal case and the PROMOTION IN MOTION civil action. Undoubtedly, both are interesting in their own right and each illustrates the procedural and substantive complexities of criminal prosecutions and civil litigation. In WOODALL, the defendant, a former sex offender that was recently released from prison, was prosecuted and ultimately convicted of the brutal kidnapping, rape, and murder of a sixteen-year old victim that was snatched from a convenience store in Greenville, Kentucky after she drove there to rent a movie. After a grand jury indictment, the prosecutor indicated that the Commonwealth would seek the death penalty at trial, and the defendant initially pled not guilty even though the police were able to secure shoeprint, fingerprint, and DNA evidence that strongly suggested that he was guilty as charged. Shortly before trial, and after a successful defense motion to change the trial’s venue to another location, Woodall changed his plea to “guilty,” which meant that the only remaining issue was whether he should be put to death after a sentencing hearing. At the sentencing hearing, the trial judge refused a defense counsel request to instruct the jury to not draw any negative inferences about Woodall’s decision to not take the stand and testify. After the jury sentenced him to death, the trial judge’s decision became the basis for state and federal court appeals (including habeas corpus) that ultimately affirmed his death sentence over a span of sixteen years.

In contrast, PROMOTION IN MOTION, which took four years to litigate, is a civil action that involved a breach of contract claim filed by Promotion in Motion against Beech-Nut Nutrition Corporation in a New Jersey trial court after Beech-Nut removed Fruit Nibbles from the market, a product that Promotion in Motion manufactured and packaged for Beech-Nut. [*102] Beech-Nut did so after receiving customer complaints and internal quality control reports indicating that the Fruit Nibbles’ product, which was ingested by toddlers, degraded in a short period of time after was put in stores, thus making it “shriveled, disgusting-looking snacks” of poor quality (p. 7). After successfully removing the case to a federal trial court, Beech-Nut not only denied in its answer that it breached their agreement but also filed a counter-claim seeking damages against Promotion in Motion, alleging that the failure to deliver acceptable Fruit Nibbles breached express and implied warranties of merchantability and fitness. Subsequently, Beech-Nut eliminated its own liability after it received a favorable motion for summary judgment against Promotion in Motion, a development that left Promotion in Motion potentially liable for damages on Beech-Nut’s breach of warranty claims. After a jury trial, Beech-Nut prevailed and received a $2.2 million damage award which Promotion in Motion paid in full after pursuing an unsuccessful appeal before a federal appellate court.

Before moving to an explanation about where (geographic, subject matter, and personal jurisdiction) and how (filing complaints and related procedures) criminal and civil actions begin, chapter two supplies a basic overview of the organization, docket composition, and staffing mechanisms of state and federal courts. In relation to the subsequent chapters, chapter two is the most conventional because it conveys the same type of information that is commonly found in other judicial process textbooks: the dual system of courts and their organizational structure, the origins of law, the types of cases (or business) appearing on criminal and civil dockets, judicial federalism, and judicial selection processes of federal and state courts are all briefly touched upon. Taking on the larger concepts about how federal and state courts intersect with each other obviates the need to discuss the main cases that serve as the framework for the book’s analysis of key topics; but their discussion provides the background and context for grasping the procedural logistics and complexities of the WOODALL and PROMOTION IN MOTION cases, a narrative that begins in earnest in chapter three.


Vol. 27 No. 6 (July 2017) pp. 97-100

PICKING JUDGES, by Nancy Maveety. New Brunswick: Transaction Publishers. 2016. 122pp. Cloth $100.00. ISBN: 978-1-4128-6274-5. Paper $44.95. ISBN: 978-1-4128-6330-8.

Reviewed by Jennifer Diascro, University of California Washington Program (UCDC). Email:

PRESIDENTS, PACK THOSE COURTS! At a time when we receive regular communication—from the President of the United States, no less—in 140 characters and in all caps for dramatic emphasis, this might have been the title of Nancy Maveety’s compact but thorough volume published as part of the (now) Routlege Presidential Briefing series. The central thesis is that presidents have not only the constitutional authority to staff the federal courts with judges of their choosing, but they have the political obligation to do so. Despite the more staid headline, PICKING JUDGES, Maveety’s purpose is clear: to advise presidential staff—and President’s themselves—that they should step up to their rightful place in the appointment process, exercise their discretion and leadership in taking every opportunity to engage in the selection of judges that align as closely with their political agenda—their electoral mandate—as institutional and political circumstances allow.

Maveety does an admirable job. There’s barely a word wasted in this “briefing.” In five short chapters filled with history and political science research, she lays out her case for the significant role that presidents can and should have in selecting judges. It’s a bit hard to imagine that a president’s staff—let alone the president himself—would read this book in preparation for judicial appointments, but it’s a good idea…and they should. At the very least, this volume would be an excellent addition to undergraduate courses on the presidency and, of course, judicial process.

First, Maveety begins with an historical overview of how the president’s constitutional and political power has developed over time. This is a story about the struggle between presidential power to nominate and Senate power to advise and consent, all in the context of broader legislative authority to define the institutional parameters of the federal judiciary. Constitutional power may be the least of the factors involved in selecting judges as presidents must navigate a multitude of obstacles and constraints in their particular political landscapes to put their preferred judges on the bench. From George Washington and Andrew Jackson, Andrew Johnson and Woodrow Wilson, Richard Nixon and Ronald Reagan, and most recently George W. Bush, Bill Clinton, and Barak Obama, Maveety illustrates the various successes and failures of judicial appointments. The reader learns quickly about the constant (and intentional) conflict between the political imperatives of elected officials and the essential independence of judges in American democracy. From the focus on party loyalty and geographic representation in the early years of the Republic, to the merit-based qualifications of individual candidates, to the increasing significance of interest groups and demographic representation, and the prominent role of political ideology and policy agendas, the evolution of the active and even aggressive executive role in staffing the federal bench is illuminated. Maveety introduces us to Chief Justice Taney, Justice Brandeis, Robert Bork; to the “the switch in time that saved nine,” Nixon’s “Southern strategy,” and the notions of a living constitution and an ideological litmus test; and much more, as she describes how presidents have maneuvered—more and less successfully—around Senate obstacles and through the opportunities and challenges posed by laws that have expanded and constricted the size and authority of the courts over the years.

Because the appointment process starts (at least technically) with the president’s nomination of an individual or slate of candidates to fill judicial seats, Maveety turns in Chapter Two to the demographic, political, and merit-oriented [*98] characteristics that may –or should—affect a president’s choices as he faces a Senate and individual senators who may have alternative ideas about who would best serve as a federal judge. The reader is again treated to some interesting history as Maveety tells stories of presidential successes and failures to weigh appropriately—in light of Senate veto points like senatorial courtesy, blue slips, and scheduling hearings and votes (p.70-77)—the relative significance of factors such as legal and political qualifications, experience, integrity, and demographic characteristics like race, ethnicity, sex, and age. Among others, she reminds us of George W. Bush’s failure to put qualifications above favoritism in his nomination of Harriet Miers to the Supreme Court, and of the successful Supreme Court “firsts” by Johnson (Justice Marshall), Reagan (Justice O’Connor), and Obama (Justice Sotomayor), who recognized the electoral benefits of candidate qualities.


Vol. 27 No. 6 (July 2017) pp. 92-96

REPRESENTING MASS VIOLENCE: CONFLICTING RESPONSES TO HUMAN RIGHTS VIOLATIONS IN DARFUR, by Joachim J. Savelsberg. Oakland: University of California Press. 2015. 341 pp. Paper $24.95. ISBN: 978-0-520-28150-9.

Reviewed by Wesley T. Milner, Office of International Programs, University of Evansville. Email:

Numerous scholars view the last century as one of the most destructive in human history, with massive conflict and human rights degradation. Additionally, the last two decades have seen advancing technology and the almost instantaneous proliferation of information around the globe. As we enter the seventh year of an increasingly devastating civil war in Syria and widespread reports of human rights violations throughout the world, some may question if we have become desensitized to the egregious practices we continue to inflict on our fellow human beings.

In this context, sociologist Joachim Savelsberg utilizes the situation in Darfur as a case study for investigating a much wider set of interesting inquiries. Some may question his focus on Darfur as much of the world’s attention has unfortunately, if not understandably, moved on to other crises. Drawing heavily from the “justice cascade” as illustrated by Sikkink (2011), Savelsberg carefully examines the fields of human rights and criminal law, humanitarianism, and diplomacy as they intersect with media conceptualizations of mass violence in this region. Through studying some 3400 newspaper reports in eight countries (i.e., Austria, Canada, France, Germany, Ireland, Switzerland, United Kingdom, and the United States) and conducting extensive interviews with journalists, non-governmental organization (NGO) officials and diplomats, the author asks why we see such differences in reporting and framing. He argues that focusing on similar states - wealthy, western, free-market democracies - provides for better isolation of crucial variables. Here, he also attempts to move beyond “methodological nationalism” toward a quantitative and qualitative intersection of global, national and local inputs (Beck and Sznaider 2006). The book is very systematic in its organization and execution with the main body separated into four, distinct sections.

Part I focuses on the emerging justice frame and examines the human rights field and fight against impunity. In the first chapter, the reader is whisked through a brief but effective introduction to international non-governmental organizations (INGOs) and transnational advocacy networks (TANs) and the acceptance of criminalization and individualization of international law. Here we see the initial utterance of the word “genocide” by Secretary of State Colin Powell and President George W. Bush in 2004 to describe the atrocities in Darfur quickly followed by the United Nations Security Council referral of the case to the new International Criminal Court (ICC). This ultimately led to the indictment of Sudanese President Omar al-Bashir for crimes against humanity, war crimes and genocide. Notwithstanding the progress in favor of the justice cascade (Sikkink 2011), Savelsberg honestly acknowledges the limits of this approach and the fact that no Darfur case has reached the trial stage. The second chapter focuses on civil society and human rights groups such as Human Rights Watch, International Crisis Group, the Enough Project, and especially Amnesty International. Savelsberg portrays Amnesty International as a formal, centralized organization that is very effective at the grass roots. While also seeking other goals of peace and victim protection, Amnesty International pushes first for justice in the expectation that justice is perhaps needed as a precondition for the achievement of these other desirable ends.

Chapter 3 explores the linkages to civil society in the human rights field and highlights the outsize role of the US in the progress of the justice cascade. This is especially surprising since the US has never ratified the Rome Statute [*93] and distances itself from the ICC. At the forefront of this movement are the US Holocaust Memorial Museum (who in 2004 issued a genocide alert for Darfur) and the Save Darfur campaign. Savelsberg notes during this period US media were more likely to recognize victimization compared to the other seven countries he studies. He also shows empirically that the US media use the crime frame more often than other states and are much more likely to cite the genocide frame. Here, the depiction of mass violence through the crime frame exposes these egregious acts as criminal and the perpetrators as violators of and subject to international law. Moving beyond the Clinton Administration’s reluctance with Rwanda in the 1990s, both the US government and civil society organizations portrayed human rights violations in Darfur unmistakably as genocide.


Vol. 27 No. 6 (July 2017) pp. 89-91

SUPREME COURT CONFIRMATION HEARINGS IN THE U.S. SENATE: RECONSIDERING THE CHARADE, by Dion Farganis and Justin Wedeking. Ann Arbor, University of Michigan Press. 2014. 176pp. Cloth $65.00 ISBN: 9780472119331.

Reviewed by Christine Nemacheck, Government Department, College of William and Mary. Email:

It seems every time there is a new appointment to the U.S. Supreme Court, the debate about the value of the Senate Judiciary Committee’s confirmation hearings swirls once again. President Trump’s nomination of Judge Neil Gorsuch to fill the seat left vacant by Justice Scalia’s death in February 2016 was no different. In fact, falling as it did on the heels of the Senate’s refusal to even meet with President Obama’s nomination of DC Circuit Court of Appeals Chief Judge Merrick Garland, anticipation for these hearings was arguably even greater than typical. Then Judge Gorsuch managed to avoid major missteps and, if anything, he appeared to some senators as almost too prepared in his responses to their questions. During the hearings, Senator Diane Feinstein (D-CA) expressed her concern with the Judge’s answers by asserting that he had been “able to avoid specificity like no one [she had] ever seen before….”

Senator Feinstein is hardly the first person to imply, or assert outright, that little new information results from the typically lengthy confirmation hearings on Supreme Court nominees. To better understand the value of these confirmation hearings, Dion Farganis and Justin Wedeking undertook an extensive examination of Supreme Court confirmation hearings between 1955 and 2010. Their book, SUPREME COURT CONFIRMATION HEARINGS IN THE U.S. SENATE: RECONSIDERING THE CHARADE, provides an excellent framework to evaluate the kinds of questions senators’ ask and the responses nominees provide during their confirmation hearings. Farganis and Wedeking’s findings on the degree of candor with which Supreme Court nominees typically respond meaningfully to senators’ questions should reassure Senator Feinstein and others that the process does produce relevant information as to their jurisprudence.

Since the mid- to late-20th Century, and perhaps particularly since the hearings on Judge Robert Bork’s Supreme Court nomination, academics and pundits alike have bemoaned Supreme Court confirmation hearings as “exercises in obfuscation.” Or, as Justice Elena Kagan put it in 1995, long before her own confirmation hearings, a “vapid and hollow charade” (p. 941). Typically such assessments are contrasted with a long-ago time when hearings resulted in richer discussions about substantive issues. Farganis and Wedeking set out to determine whether these negative views of confirmation hearings are actually supported by the evidence. The authors examined every exchange between a senator and the nominee in every Supreme Court confirmation hearing since 1955. In all, the authors analyzed 10,833 exchanges in the hearing transcripts from Justice Harlan’s 1955 hearing through Justice Kagan’s hearing in 2010.

As it underpins their analysis, Farganis and Wedeking’s data collection efforts merit some discussion. The authors coded the exchanges into two broad categories: “Questions of Fact” and “Questions of View.” Within each broad category, the authors then coded the topic of the questions asked and the degree to which the nominees’ answers were forthcoming. When nominees’ answers were not forthcoming, the exchanges were classified into one of five explanatory categories. In short, collecting and coding the data was a massive undertaking. Farganis and Wedeking developed an extensive database and followed the standard protocols for intercoder reliability.


Vol. 27 No. 5 (June 2017) pp. 86-88

NO DAY IN COURT: ACCESS TO JUSTICE AND THE POLITICS OF JUDICIAL RETRENCHMENT, by Sarah Staszak. New York: Oxford University Press, 2015. 320pp. Hardcover $99.00 ISBN 978-0-19-939903-1 Paper $27.95 ISBN 978-0-19-939904-8.

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

As the clock ticked down on my qualifying oral examinations, I was feeling optimistic that I was going to survive. But the last question I received was not one I had spent any time preparing for: “Why did you decide to study public law?” I had never examined it very closely. I stammered out a response that had the virtue of being close to truth: I had been energized by the constitutional revolution that was the Warren Court. The times they were a changin’. And I suppose that begs the question what would I do today if I read this book in graduate school?

Few disputes end up being resolved in formal court hearings in front of a jury. Over 90 percent of criminal cases are resolved through a plea bargain of some type. Civil disputes also typically get resolved outside a formal courtroom before the full trial process is engaged. It would be impossible for the judicial system to accommodate trials if the percentages were reversed, or even if half the disputes went to trial. But it is one thing for the parties to a dispute to make the choice to settle the case or enter into a plea bargain arrangement; it is something else for access to the courts to be curtailed or limited. In her comprehensive, but sobering book, Sarah Staszak examines judicial retrenchment and advances a conceptual framework for understanding the changes that have limited access to the court system for many Americans.

It is clear to anyone with a passing interest in the judiciary that the post-Warren Supreme Court has tightened standing requirements and made it more difficult to sustain class action suits. Staszak documents the clear decline in the number and percentage of class action suits, civil rights cases, and civil cases that reached trial in the federal courts. The numbers are staggering, suggesting the full impact of barriers to participation. It is also apparent that limiting access has unequal consequences. Groups and individuals that most need access are typically the ones who are most adversely affected. It is not surprising that access to the federal judiciary has gotten more difficult. But the reasons for the reduced access and their scope are eye-opening.

The author casts a light on the “judicial retrenchment” of court access, the “process by which a range of actors both exogenous and endogenous to the courts and Congress work to scale back access to the courts by targeting the institutional and procedural rules that govern political institutions” (p. 21). Casting light is an accurate assessment because much of what occurs, according to Staszak, is done at a “subterranean” level in the realm of procedural rules. The rules can and have been used to constrict access to the courts.

Staszak argues that attention to Court curbing, threats to jurisdiction, and “grand acts of politics” obscure the quiet and more important process of judicial retrenchment. There are many culprits across the political and institutional spectra that share in the process: “The goal of scaling back access to the courts comes from a multitude of actors both within and outside of the government” (p. 7). She argues that judicial retrenchment is as much—if not more—about Congress, bureaucrats, legal organizations, business, interest group politics, and judicial administrators acting with a variety of political and institutional goals in mind as it is about conservative judges on the nation’s courts. Staszak shows how partisans of all ideological stripes advanced procedures like Alternate Dispute Resolution (ADR) for different reasons and ultimately conservatives on the Court and in Congress were able to bend new and old rules to their advantage.


Vol. 27 No. 5 (June 2017) pp. 83-85

ASSESSING CONSTITUTIONAL PERFORMANCE, edited by Tom Ginsburg and Aziz Z. Huq. New York: Cambridge University Press, 2016. 442pp. Paper $39.99. ISBN: 9781316608357.

Reviewed by John E. Finn, Professor of Government Emeritus, Department of Government, Wesleyan University. Email:

This edited collection on the concept of constitutional performance is an important, interesting, and occasionally frustrating book. It will likely be a standard reference in the field of comparative constitutional politics for many years.

As is often the case with edited collections, this one is a bit of a mix. Some readers will find some nuts more appetizing than others, as did I. All of the chapters are impressive, but I was especially struck by Aziz Huq’s chapter on Hippocratic constitutional design, Roberto Gargarella’s chapter on Alberdi, Sumit Bisarya’s chapter on transitional provisions, and Dixon and Landau’s chapter on the constitutional minimum core.

The collection’s biggest strength is its catholic, ecumenical character. As Ginsburg and Huq make clear in their Introduction, they make no effort to advance a single or comprehensive definition of constitutional success or failure, and likewise make no stab at a singular definition or metric of constitutional performance. Their decision not to do so is one of the strengths and weaknesses of the book. It is a strength chiefly because the lack of direction allows the contributors to advance a wide variety of definitions and approaches, often in conversation and disagreement with one another.

This diversity of definition is explicit in, if not the theme of the first part of the book, entitled, aptly, “Defining Constitutional Performance.” But it also resonates in part 2, which addresses some of the concrete and specific challenges that face constitutional regimes (such as managing the transition from military to civilian rule, or in ensuring a minimum core of democratic competition, among others), and in part 3, which consists of four case studies.

One of the central disagreements in the book, discussed at length in the opening chapter by Ginsburg and Huq and visited in nearly every other chapter, concerns whether the assessment of constitutional performance is internal or external in character, as framed by the “perspective of the person engaged in the evaluation” (p. 7). By internal, Ginsburg and Huq mean an assessment informed by “the terms of the community to be regulated by [the] instrument” (p. 7). By external, they mean “assessing constitutional performance against a benchmark derived independently of local circumstances and contingent preferences within the relevant polity” ((p. 8) (One variety of external assessment “proceeds from a normative account of desirable features or products of a constitutional order” (p. 8)).


Vol. 27 No. 5 (June 2017) pp. 80-82

LET ME BE A REFUGEE: ADMINISTRATIVE JUSTICE AND THE POLITICS OF ASYLUM IN THE UNITED STATES, CANADA, AND AUSTRALIA by Rebecca Hamlin. New York: Oxford University Press, 2014. 229 pp. Cloth: $105. ISBN: 9780199373307 Paper: $30.95. ISBN: 9780199373314.

Reviewed by Anna O. Law, Political Science Department, CUNY Brooklyn College. Email:

Who is a refugee? How do three of the richest nations in the world make that determination? Unlike most immigrants who voluntarily choose to move countries, refugees are pushed from their homelands by circumstances beyond their control, including, but not limited to: civil unrest, political persecution, drug or gang violence, or natural disasters. The treatment of these groups is subject to international frameworks set out in 1951 (p. 4). Those World War II era agreements’ purpose was to lay out basic protections and international norms for the treatment of persons fleeing persecution, but they did not force countries to take in refugees. The effectiveness of these international accords in protecting highly vulnerable populations is an empirical question in need of assessment.

How three of the most well-known immigrant-receiving nations treat these potential immigrants who seek to enter their territory without prior permission is the subject of Rebecca Hamlin’s book. Instead of focusing broadly on domestic politics, Hamlin zeroes in on one variable within it, what she terms the “refugee status determination” (RSD) regimes of each country. She defines the RSD as “1) the set of institutions that are responsible for conducting RSD and 2) the relationships and power dynamics among those institutions” (p. 9). While holding the RSD constant, she traces the creation of policy and adjudications process through the lens of the RSD institutions and institutional arrangements.

The greatest strength of the book project is its research design. Hamlin is right that most existing studies focus only on one country. The problem with single country studies is that although they can uncover disparities within a single country, they cannot assess the efficacy of international refugee protection efforts across nations. (See for example the influential REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM on the US case.) Hamlin has gone comparative and has chosen her case studies well. Each of the three nations: the United States, Canada, and Australia, are western industrialized democracies that are immigrant-receiving, as opposed to immigrant-sending, nations. As well, they have similar legal systems and strong judiciaries (p. 25-27). The comparative approach applied to RSD allows an empirical assessment of the extent to which international agreements further human rights protections. Hamlin draws the sobering conclusion that although “no host country has threatened to abandon the 1951 Convention altogether, and no country has managed to completely prevent asylum seekers from arriving…the power of the international refugee protection regime is wearing thin” (p. 60).

Hamlin’s multi-methodology approach conveys a textured understanding of the processes and mechanisms of the RSD machinery and how those in turn affect adjudications outcomes. The book draws on interviews, doctrinal analysis of key cases, searches of newspaper articles from major newspapers, her observations of asylum determination hearings, and examination of official statistics—all across three different countries. Hamlin weaves these together to process trace what the RSD is and how it undertakes adjudications in Chapters 4 (US), 5 (Canada), and 6 (Australia). These chapters provide a detailing of the administrative agencies and judicial institutions’ involvement (to varying extents) in the asylum adjudications in each country.


Vol. 27 No. 5 (June 2017) pp. 76-79

THE AGE OF DEFERENCE: THE SUPREME COURT, NATIONAL SECURITY, AND THE CONSTITUTIONAL ORDER, by David Rudenstine. New York: Oxford University Press, 2016. 344pp. Hardcover $29.95. ISBN: 9780199381487.

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

David Rudenstine, the Sheldon H. Solow Professor of Law at Cardozo Law School, offers a rebuke of the Supreme Court and its continued and increasing deference to the executive branch in matters related to national security. Rudenstine’s view, made clear by the title of the book, continues unabated throughout the work.

Rudenstine opens the book with the premise that “…the Supreme Court—has generally betrayed for over seven decades its responsibilities to hold the executive meaningfully accountable in cases the executive claims implicates national security” (p 3). In some ways, this thesis is surprising. Readers will no doubt recall Supreme Court cases such as YOUNGSTOWN SHEET & TUBE V. SAWYER, which ended the Truman administration’s seizure of the nation’s steel industry during the Korean War and more recent cases including HAMDI and BOUMEDIENE, both of which limited the executive branch’s unqualified holding of detainees during the War on Terror. And, the judiciary—if not the Supreme Court—has limited the reach President Donald Trump’s consecutive executive orders attempting to limit travel from MENA (Middle East and African Nations), Muslim majority nations. Several federal courts, most recently the Fourth Circuit Court of Appeals, in INTERNATIONAL REFUGEE ASSISTANCE PROJECT V. TRUMP, held that “Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation” (p. 12).

Yet, through diligent research and convincing argument, Rudenstine strongly supports his thesis. THE AGE OF DEFERENCE is organized into four sections, with Part One, “From Isolationism to Globalism” setting the stage for an increasingly weak Supreme Court in the face of an executive leading the free world in the wake of World War II. In Chapter One, Rudenstine notes that cases such as YOUNGSTOWN are, indeed, important. However, he avers against seeing these cases as evidence of a strong, empowered Court, and instead suggests that the “general disposition of the Supreme Court” (p. 11) has been prostration to the executive branch. He further suggests that because the rise of executive power has been due to the rise of the American influence on the world, judicial deference “will continue until the members of the Supreme Court conclude that the harms inflicted by undue deference in national security cases exceed whatever national interests the deference may be thought to be advancing” (pp. 15-16).

Chapter Two, “The Ingrained Narrative,” explains the popular view that the Supreme Court enables the executive branch in times of war and national emergency, but reasserts itself in times of peace, and utilizes the infamous KOREMATSU decision as to explain this narrative. However, Rudenstine also posits that this narrative is lacking in several dimensions—and this is the subject of the third chapter, in which he offers “A Second Look” at the dominant narrative. It is in the third chapter that the foundation of Rudenstine’s argument begins to solidify. Using cases from the Civil War and World War I eras, Rudenstine notes much of what observers of the “Strategic Model” of judicial decision making (Epstein and Knight, 1997; Bergara, Richman and Spiller, 2003) have noted for years: mainly that presidents “may refuse to comply with an order” and that Congress can “use its authority to retaliate against” the Supreme Court (p. 41). Despite the “remarkable timidity” of the Court in these eras, he argues in Chapter Four that the number of [*77] cases related to questions of national security increased dramatically in the wake of World War II, and that judicial deference also increased dramatically. Importantly, here Rudenstine argues that the High Court not only will decide cases in support of the executive branch, but has created “technical legal doctrines of deference” allowing the Court to dismiss many national security cases without ruling on the legal merits of those cases (p. 65).


Vol. 27 No. 5 (June 2017) pp. 73-75

THE COMING OF THE NIXON COURT: THE 1972 TERM AND THE TRANSFORMATION OF CONSTITUTIONAL LAW, by Earl M. Maltz. Lawrence: University of Kansas Press, 2016. 250pp. Cloth, $34.95. ISBN: 978-070062278-8.

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email:

Rutgers University School of Law Professor Earl M. Maltz combines two approaches to studying constitutional law—case studies of individual justices and examination of several areas of the law—and applies them to a specific time period in U.S. Supreme Court history, the 1972-73 term. Justifying the latter period partly due to the fact that all four of President Richard Nixon’s appointees were present on the Court initially that year, Maltz contends that “one would be hard-pressed to find another term in the late twentieth century in which the Court dealt with so many issues with major implications for the future of constitutional law” (p. viii). The study endeavors to explain how the interaction of the justices’ disparate views, judicial institutionalism, and changing times influenced case rulings on several controversial topics in the 1972-73 term.

Though there is no grouping of chapters in the book, the topics can be covered in terms of background, areas of constitutional law, and conclusion. Chapter 1 assesses reasons for the
emergence of the Burger Court, named after Chief Justice Warren Burger. These included a backlash against progressive gains of the 1960s together with the election of Richard Nixon in 1968. The chapter likewise presents biographies of all justices who were on the Court in 1972, including Nixon appointees Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. Maltz observes that because the balance of power on the Court in 1972 was held by a combination of Nixon appointees and holdovers, the outcome was not easily labeled ideologically. Chapter 2 probes how the Court’s 1971 term was a harbinger of future trends. For instance, just as case rulings in the areas of racial discrimination and Sixth Amendment right to counsel seemed to demonstrate a conservative tilt, so the lead-up to the 1972 FURMAN V. GEORGIA decision pertaining to capital punishment conveyed a continuation of progressive thinking.

Chapters 3 through 6 cover reapportionment and voting rights, obscenity, criminal procedure,
and school desegregation, respectively. The Court as led by Chief Justice Earl Warren significantly impacted the approach to legislative apportionment. In the 1972-73 term, several
rulings connoted a move away from an expansive interpretation of rights in this area. On the subject of obscenity, Chief Justice Burger himself wrote the majority opinion in the 1973 MILLER V. CALIFORNIA case, which permitted greater state discretion in imposing regulations. Maltz finds that criminal procedure cases, while continuing to take up a large portion of the Court’s caseload, did not bring any major breakthrough during the 1972-73 term. As a consequence of the 1971 ruling in SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, judges gained wider authority to impose changes in order to eradicate segregation. Bussing was debated at both the national and state level and became an issue in the 1972 presidential campaign.