Vol. 31 No. 7 (August 2021) pp. 127-129

SEPARATE BUT FAITHFUL: THE CHRISTIAN RIGHT’S RADICAL STRUGGLE TO TRANSFORM LAW AND LEGAL CULTURE, by Amanda Hollis-Brusky and Joshua C. Wilson. New York: Oxford University Press, 2020. 297pp. Cloth $29.95. ISBN: 9780190637262.

Reviewed by Ann Southworth, University of California, Irvine, School of Law. Email:

Many conservative Christians believe that legal education took a wrong turn in the nineteenth century, when it departed from an understanding of law rooted in Christianity and biblical principles to embrace secular legalism. In their new book, Amanda Hollis-Brusky and Joshua Wilson explore how Christian Right leaders sought to respond, by building institutions to promote a “Christian worldview” within law. Several patrons established distinctly Christian, biblically oriented, religiously controlled law schools while others founded litigation-support organizations. This fascinating, thoroughly researched, and well-executed book analyzes why Christian Right leaders chose these strategies and whether they achieved their goals.

Four institutions serve as case studies. In 1986, televangelist Pat Robertson founded Regent Law School as part of his Christian Broadcasting Network empire. In 2000, Domino’s Pizza mogul and Catholic patron Thomas Monaghan provided the funding to establish Ave Maria School of Law. Four years later, Jerry Falwell, founder of the Moral Majority, opened Liberty Law School. In 2000, Alan Sears, leader of Alliance Defending Freedom, the nation’s most influential conservative Christian legal advocacy organization, chose a different approach to educating Christian right lawyers when he launched the Blackstone Legal Fellowship, a summer training program that teaches law students about natural law and places them into internships where they apply that training to legal practice.

The creation of these law schools and training programs was part of a larger strategy of institution building by the Christian Right in the 1990s and early 2000s meant to complement its mobilization in electoral politics. Law schools were obvious vehicles for changing law and legal culture because of the roles they play in socializing and credentialing lawyers (human capital), creating connections to professional networks (social capital), and generating, legitimating, and disseminating ideas about law and constitutional meaning (cultural and intellectual capital). Less obvious was that Christian Right patrons would choose to create brand new Christian Worldview law schools—what the authors call the “parallel alternative” approach—at great risk and expense rather than a less expensive “infiltration” approach, which would involve attempting to reorient existing institutions. Why did the founders decide against investing in already established religiously-oriented law schools, such as Baylor or Notre Dame? And why did Sears decide to take a lower-cost, lower-control strategy (a “supplemental” approach) with the Blackstone Legal Fellowship program?

The book assesses these choices primarily in terms of their production of resources required for legal change through the courts. Previous work has shown that “support structures” (Epp 1998), consisting of patrons, lawyers, and advocacy [*128] organizations, are necessary for litigation-based change efforts. Chapter 1 builds on this theory by conceptualizing the support structure for legal change as a pyramid in which resources flow up and down the pyramid’s levels. At the base are patrons, who provide the financial resources necessary to support law schools and legal training programs. Those institutions, in turn, supply the human, social, cultural, and intellectual capital required to prevail in litigation. Those resources can influence opinions and rulings generated by courts at the apex of the pyramid. They also hold potential to shape the broader cultural and political context in which the pyramid is embedded.


Vol. 31 No. 7 (August 2021) pp. 123-126

CURBING THE COURT: WHY THE PUBLIC CONSTRAINS JUDICIAL INDEPENDENCE, by Brandon L. Bartels and Christopher D. Johnston. Cambridge: Cambridge University Press, 2020. 306pp. Paper $34.99. ISBN: 978-1-316-63850-7.

Reviewed by Amanda C. Bryan, Department of Political Science, Loyola University Chicago. Email:

There is hardly a discussion in judicial politics (especially among Supreme Court scholars) that does not, at one time or another, invoke the importance of judicial legitimacy. For more than 30 years, scholars have studied whether, how, and why the public trusts the Court. Most recently, this debate has centered around whether citizens’ ideological disagreement with the Court’s decisions can affect not only support for the decisions themselves, but their support for the Court as an institution. While this debate is far from over, CURBING THE COURT: WHY THE PUBLIC CONSTRAINS JUDICIAL INDEPENDENCE answers that question resoundingly with a “yes.”

The book uses both observational and experimental data from seven surveys conducted over more than a decade to challenge the conventional wisdom that the public’s evaluation of the Court is immune from partisan passions. Instead, they powerfully argue that citizens “care most about getting policy, partisan, and ideological victories… even if this means subverting the independence of the Court” (p. 245). This book is thorough, well-executed, well-written, and compelling. Given the importance of the debate they are engaged in, CURBING THE COURT is a must-read for students of the Court and anyone concerned with the independence of the judiciary.

The authors’ central thesis is that individuals are more willing to express support for curbing the Court’s independence and power when the Court issues decisions out of line with their political preferences. The book begins in Chapters 1 and 2 by setting out theoretical expectations and defining a set of conceptual frameworks that will be used throughout.

One of the biggest strengths of Bartels’ and Johnston’s work is that it wades into a legitimacy debate that is both crowded and cluttered and adds much-needed conceptual clarity. Chapter 1 lays out both how and why the literature’s varying definitions of diffuse support/legitimacy/institutional loyalty have gotten murky and how that definitional murkiness has gotten in the way of examining whether legitimacy relies on policy agreement. They choose to isolate one vector of this complicated concept – support for Court-curbing – and explain why it can lend insight into this broader question.

In the first chapter, the authors are careful to carve out a conceptual difference between support for Court-curbing and legitimacy, or institutional loyalty and writ-large. They write that “while public support for Court-curbing has implications for the Court’s institutional legitimacy, it is not a direct indicator of legitimacy” (p. 21, emphasis in original). Through this argument, the authors distinguish between support for narrow Court-curbing and broad Court-curbing. [*124] Bartels and Johnston define broad Court-curbing as “support for lasting and fundamental changes to the Court” (p. 23). This includes the answering affirmatively to questions such as “if the Supreme Court continually makes decisions that people disagree with, it might be better to do away with the Court altogether” or supporting institutional reforms such as cameras in the courtroom or a mandatory retirement age. By contrast, narrow Court-curbing is defined as “support for proposals to subvert the Court’s authority within circumscribed issue areas” (p. 23). Much of the book is focused on explaining when the public will support narrow and broad Court-curbing.


Vol. 31 No. 7 (August 2021) pp. 118-122

TRANSGENDER RIGHTS: FROM OBAMA TO TRUMP, By Susan Gluck Mezey. New York: Routledge, 2020. 221pp. Paperback $39.95 ISBN: 978-0-8153-5940-1.

Reviewed by Ashley Casale, Department of Women’s, Gender, and Sexuality Studies, University at Albany SUNY. Email:

TRANSGENDER RIGHTS: FROM OBAMA TO TRUMP by Susan Gluck Mezey, is an expertly argued, thorough, and systematic analysis of the development and constraints of transgender rights in four domains: the workplace, schools, public facilities, and the Armed Services. Mezey’s central argument in this book is that the executive branch and the courts have been primarily responsible for securing (in the case of the Obama Administration) and erasing (in the case of the Trump Administration) transgender rights, with Congress being conspicuously absent. Mezey also highlights the ways in which the “T” in LGBT has largely been subsumed by focus on sexual orientation in most legislation. Mezey shows throughout this work that neglecting to specifically mention transgender people in LGBT rights discussions not only creates large problems when it comes to “what to do about those people,” but also effectively constitutes their erasure. Though she takes care to evaluate the actions of the Obama and Trump administrations and weigh their commitment to securing equal rights for transgender people, Mezey actually seeks to assess those same issues in the executive and judicial branches in the absence of congressional action. Mezey works systematically and clearly: each bolded chapter heading is labeled with the actions of Congress, the Obama Administration, the Trump Administration, and finally the courts. Self-reflective, she writes in the Preface that throughout her career, she operated under the erroneous assumption that policy gains and advances made for gay and lesbian people would also benefit trans people. She uses this book to correct that supposition. She also shows how easily transgender rights can be erased when there is only administrative (executive and judicial) support without congressional involvement: “The change in administrations underscores the transitory nature of administrative policymaking to secure rights for marginalized groups,” she states in the Preface (p. vii). Without congressional action and legislation, policies can easily be reversed—and Mezey gives us reasons to care about this throughout this thoughtful work.

Mezey begins by giving an overview of the rhetoric used and action taken by the Obama and Trump Administrations on transgender rights. The Obama Administration urged courts to interpret federal civil rights laws against discrimination based on “sex” broadly to include gender identity, ended the ban on transgender military service members, and advocated for equal rights in health care, veterans’ benefits, housing, family policies, employment, and education. The Trump Administration reversed most of the Obama Administration’s work, taking the opposite approach: Trump appointed cabinet and subcabinet members who were hostile and disrespectful towards transgender people and their rights (or denied their existence altogether), supported efforts to expand religious liberties at the expense of antidiscrimination policies, barred transgender individuals from the military (recruitment and current active duty), and urged the courts to interpret sex [*119] as not inclusive of gender identity in federal civil rights law, leaving transgender people unprotected. Presidential policy is made evident by language, Mezey shows: Obama was the first president to use the word ‘transgender’ in a presidential speech. He spoke passionately about protecting transgender rights as “the right thing to do.” Trump’s language was disingenuous even when it appeared supportive: he claimed to support the LGBTQ community during his campaign, but when pressed said “the party believes whatever you’re born, that’s the bathroom you use” (p. 5). Trump Administration officials made a variety of incendiary comments, including calling transgender people “crazy” and “creatures” (Charmaine Yoest, appointed Assistant Secretary for Public Affairs at HHS), “absurd” (Tom Price, appointed HHS Secretary) calling policies protecting transgender rights “the height of absurdity” (Ben Carson, appointed HUD Secretary), and saying “transgender is a disease” (Mark Green, nominee for Secretary of the Army). The Trump Administration sought to effectively erase transgender people by removing SOGI (sexual orientation and gender identity) subjects from national surveys and ordering federal agencies to refrain from using the word ‘transgender’ at all (p. 10). Mezey has researched what LGBTQ advocacy organizations had to say about the approaches of the two presidents and includes quotes from spokespeople at dozens of these organizations, just a few of which include GLSEN, GLAAD, National Center for Transgender Equality, HRC, and Lambda Legal Defense and Education Fund to situate her analysis, and they point clearly to advances for transgender people under the Obama Administration and strides backwards during the Trump Administration.


Vol. 31 No. 7 (August 2021) pp. 115-117

PARTISAN SUPREMACY: HOW THE G.O.P. ENLISTED COURTS TO RIG AMERICA’S ELECTION RULES, by Terri Jennings Peretti. Lawrence, KS: University Press of Kansas, 2020. 374pp. Hardback $39.95. ISBN: 978-0-7006-3019-6.

Reviewed by Justin J. Wert, Department of Political Science, University of Oklahoma. Email:

Terri Peretti’s new and compelling book could not have been published at a more important time. Threats to democracy in the United States and abroad have been gaining momentum for more than a decade, and the election – and definite defeat – of Donald Trump should serve to remind us that these anti-democratic blocs are both real and resilient. But how, exactly, have they risen to power, how do they work in practice, and how do they sustain their power? This last question is the central question of the book, particularly in the areas of election law – the demise of the 1965 Voting Rights Act (and its subsequent amendments), voter identification laws, battles over redistricting, and campaign finance laws. It is in these areas (as in others) that the modern Republican Party has used judges that they have appointed as friendly regime partners to build and sustain its political power. Ultimately, Peretti is hopeful that political mobilization will stifle threats to democracy in these areas, but hers is a long term hope, for in the short term she unfortunately (but I would argue correctly), sees these battles only increasing.

Peretti frames her analysis of the modern Republican regime’s use and abuse of election law broadly understood in her Introduction through the lens of regime politics theory. Starting with Robert Dahl’s seminal 1957 article, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” scholars advancing the regime politics model argue that understanding courts requires understanding their relationships with the larger governing coalitions that appoint their members, the regimes in which they exist, and, maybe most importantly, the effects life tenure has on the makeup and output of court majorities at particular periods in American political history. The decisions of the Warren Court (1953-1969), for example, are best understood not only as legal outputs but also as political outputs, for they advanced the agenda of the New Deal/Great Society Democratic Regime. From voting rights to criminal procedure to race to freedom of press, the decisions of the Warren Court reflected the larger political and policy commitments of the mid-century Democratic Party. In this sense, then, federal courts should not be seen solely as neutral arbiters of legal and constitutional questions but as equal governing partners of the parties that appoint them. This was why Dahl argued that the Supreme Court was more often than not in tune with political majorities and could therefore be understood as a “policy-maker.” When we consider that Presidents nominate federal judges and Senate majorities confirm them for life, we should not be surprised that over time Supreme Court majorities will form and judicial outputs (decisions) will be produced that broadly represent the policy preferences of the parties that appointed them. We can see this phenomenon in identifiable periods, particularly during the Marshall Court, The Taney Court, the Warren Court, and the New Right Regime beginning with the election of Ronald Reagan in 1980. This does not mean, however, that the Supreme Court is simply the handmaiden of the elected branches and their [*116] party apparatus, for we also see courts acting independently of the regime that appointed them at certain times and in certain doctrinal areas. The norm of judicial independence combined with a perceived threat to courts’ ability to rule in certain areas in the future will often spur justices to protect their independence (Keck 2007; Wert 2011). This last feature of regime theory is an important part of Peretti’s analysis.

In the first substantive chapter examining the Court’s election law jurisprudence, Peretti explores the Court’s Voting Rights Act decisions, particularly its decision in SHELBY COUNTY V. HOLDER (2013) This momentous decision invalidated section 4 of the Act which provided a formula for identifying which jurisdictions in the United States would be subject to the preclearance requirements of section 5. These jurisdictions would need federal approval, or “preclearance,” for making any changes to voting procedures. The opinion represents a decades-long goal of the Republican Party to water down or even eliminate the Warren Court’s voting rights jurisprudence. It also represents a long-standing position of Chief Justice John Roberts, who in the early 1980’s as a clerk to then Chief Justice Rehnquist railed against the federalism implications of the Voting Rights Act. As we know, immediately after the decision was announced, Republican controlled state legislatures passed a slew of restrictive voting laws in the very areas that fell within the coverage areas of the Act. In this way, the decision can best be understood as the Court acting as a partner within the larger New Right Regime. Importantly, too, considering the fact that the Act was regularly renewed, passed, and signed by the elected branches within that regime, the Court can also be seen as acting when the elected wing could not.


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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

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

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

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

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

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

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