Vol. 28 No. 4 (July 2018) pp. 52-55

THE EROSION OF TRIBAL POWER: THE SUPREME COURT’S SILENT REVOLUTION, by Dewi Ioan Ball. University of Oklahoma Press, 2016. 400pp. Hardcover $39.95. ISBN: 978-0-8061-5565-4.

Reviewed by Rebecca A. Reid, Department of Political Science, University of Texas at El Paso. Email:

The analysis of Supreme Court influence over indigenous sovereignty by Welsh historian Dewi Ioan Ball offers a new perspective into indigenous case history. Ball argues that the Supreme Court “precipitated the erosion of the Indian sovereignty doctrine” (p. 5) by gradually replacing the doctrine with an “integrationist” ideological trend that increasingly allowed state law onto reservations and ended tribal territorial sovereignty over non-Indians in criminal, civil, and taxation areas. Ball asserts that the “integrationist trend” began in 1959 when the Court starts to conceptualize conflicts between tribes and states not as tribes versus states but rather as tribes versus the federal government, encompassing indigenous interests against states (p. 32). This ideological shift is apparent in WILLIAMS V. LEE (1959) which created the infringement test. This test was later interpreted to imply that state law exists on reservations unless it infringes upon tribal governance, narrowly defined (p. 41). While cases between 1959 and 1973 reveal ambivalent court discussions, consistently debating between the sovereignty doctrine and “integrationist” interpretation that tribal powers rest at the hands of Congress, Ball notes that WILLIAMS V. LEE marks the “foundation” of the upcoming “silent revolution” (p. 6). Namely, he argues that the infringement test created the legal space for future Courts — specifically the Supreme Court in the 1970s — to initiate the “silent revolution.” This revolution, occurring between 1973-2001, is marked by the Court’s increasing reliance upon the assumption that tribal authority over non-Indians existed only when Congress legislated it. This framework led the Court to increasingly rule in favor of state powers rather than tribal authority and marked the end of Court reliance of the tribal sovereignty doctrine to determine cases. By 1989 in taxation cases and 2001 in civil cases, the Court “cleverly” generated a “new legal history” that eradicated tribal sovereignty over non-Indians on Indian lands (p. 110).

This argument is neatly laid out over the first half of the book. Ball’s thick descriptions are lucid and enlightening as he traces the evolution of the Court and individual justices as they wrestle with the alternative legal interpretations and disparate precedents. The level of detail and nuance offered is made possible by Ball’s impressive archival research on justice notes and correspondences from 1959-2001 in addition to a handful of cases decided between 2001 and 2015. Ball further includes oral arguments and private papers of seven justices: Harry A. Blackmun, Thurgood Marshall, William J. Brennan, William O. Douglas, Hugo Lafayette Black, Lewis Powell, and Chief Justice Earl Warren. These sources enable readers follow the ideological battles across the justices and trace their ideologies across cases. These primary sources further highlight the messiness of the deliberations along with individual justices’ desires and perspectives. For example, some justices held that the sovereignty doctrine was “not strong enough to oust state law” from reservations while congressional intent was deemed more effective to prevent state intrusion. For these justices, reliance on the integrationist approach was necessary to ensure tribal authority. In contrast, other justices found tribal sovereignty irrelevant (for example, [*53] see pp. 86-88). In addition, the texts provide insights into the justices’ preference for consistency, their desire to determine cases narrowly so as to avoid broad language that would be inappropriately applied in future cases, and the impact of case facts that would lead particular justices to vote with a majority that seemingly contradicted his/her legal and ideological preference. Ball excels at presenting a glimpse into judicial debates and decision making at the individual level.

The second half of the book discusses the impact of this revolution on Indigenous Peoples. Ball’s discussion on how the Court’s jurisprudence impacted indigenous litigation strategies and attempts to avoid having cases heard by the Supreme Court is particularly notable. Ball is one of the few authors to explicitly discuss this crucial nexus in this context, so this chapter was unique and enlightening. Ball focuses primarily on Senate Bill 578 and the responses to its demise, such as the Tribal Law and Order Act of 2010 and Violence Against Women Reauthorization Act of 2013. The in-depth focus allows the reader to understand how complicated and difficult indigenous rights advocacy is, as well as places the Court within the larger political context. The final chapters similarly reflect on how court jurisprudence has affected Indigenous Peoples’ ability to generate revenue, protect and provide for their members, and secure their cultural identities.

This book excels at offering an in-depth look at judicial deliberations that is accessible for general, lay audiences. Ball makes no assumptions about the reader’s understanding of indigenous law or courts and thus avoids jargon, explains judicial processes, and makes explicit the implications of each argument. Hence, this book is an accessible introduction to indigenous law in the American Supreme Court. Such a book could be easily used in academic settings at the undergraduate or graduate levels.


Vol. 28 No. 4 (July 2018) pp. 45-51

ETHICS AND ACCOUNTABILITY ON THE U.S. SUPREME COURT: AN ANALYSIS OF RECUSAL PRACTICES, by Robert J. Hume. Albany, NY: State University of New York Press, 2017. 204pp. Paper $20.95. ISBN:  9781438466965.

Reviewed by Ryan C. Black, Department of Political Science, Michigan State University. Email:

Scholars of the U.S. Supreme Court commonly observe that one of the most important powers of the Court is its near-universal control over its docket. As the title to H.W. Perry’s seminal volume on agenda-setting reminds us (1991), the Court has the power to decide what it will decide. In ETHICS AND ACCOUNTABILITY ON THE U.S. SUPREME COURT, Robert Hume contends that the decision to recuse (or not) from a case provides Supreme Court justices with even more discretion than is commonly acknowledged. This book is ambitious in that it seeks “to penetrate the myths surrounding recusals by studying their causes and consequences systematically” (p. 4). Hume’s efforts are overwhelmingly successful and the result is a compact and accessible text that significantly enhances our understanding of an aspect of decision making that lands in the scholarly sweet spot of being really important but woefully understudied.

As a preliminary matter, Hume makes a persuasive case for why recusal is worthy of scholarly attention. First, the identity of who votes in cases has profound implications for both the disposition of cases and the resulting content of law. When a justice sits out from a case, what was once a comfortable majority might become more tenuous. Secondly, this dynamic is especially important at the agenda-setting stage, where the Court’s “Rule of Four” requires at least four votes – out of nine – to grant review to a petition. This bar does not lower in the absence of one (or more) justice. Third, beyond individual cases or petitions, discretionary recusals provide a uniquely clear window into how justices and the Court seek to balance a number of competing interests such as institutional legitimacy and fairness versus the desire to set legal policy.

Chapter 1 combines a pithy discussion of a handful of salient recusal decisions (or non-decisions) with novel empirical data on media coverage to bring recusal novices up to speed. Prior to the 1970s, the limited amount of editorial commentary on recusals opposed their usage for concern that their usage would create administrative problems for the Court (e.g., evenly-divided courts). Discussion of Judge Clement Haynsworth’s failure to recuse himself as a circuit court judge provided some of the first fodder for calling for more usage of recusals. Around the same time, then Associate Justice William Rehnquist found himself in the editorial crosshairs over his non-recusal in a trio of cases involving the Nixon administration while he was Assistant Attorney General. This culminated in what was the first public statement issued by a justice defending their participation in case.

Since the 1970s there have been two salient flare-ups concerning recusal decisions. The first, in 2004, involved Justice Antonin Scalia issuing a statement justifying his participation in a case involving Vice President Dick Cheney after it was revealed that Scalia had spent a weekend duck hunting with a group of individuals that included Cheney. Quick (and interesting) tangent: Hume reports on the existence of earlier, arguably more egregious, instances of cross-branch fraternization during the 20th century that were previously unknown to this reviewer. Justices Robert Jackson and Byron White vacationed with President Franklin Roosevelt and Attorney General Bobby Kennedy, respectively, while cases involving their administrations were pending before the Court (p. 5-6).

The second recusal flare-up took place when the Court was poised to review the constitutionality [*46] of the Affordable Care Act. In this case, Justice Elena Kagan’s participation was criticized by some, given her role as the Solicitor General under President Obama (though Kagan maintains that she was uninvolved in related discussions). Similarly, Justice Clarence Thomas’ participation was scrutinized not for his behavior, but rather that of his wife, Ginny Thomas, who was a vocal Obamacare opponent.


Vol. 28 No. 4 (July 2018) pp. 42-44

SUPREME COURT EXPANSION OF PRESIDENTIAL POWER: UNCONSTITUTIONAL LEANINGS, by Louis Fisher. Lawrence, Kansas: University Press of Kansas, 2017. 352pp. Cloth $39.95. ISBN: 978-0-7006-2467-6.

Reviewed by Michael A. Zilis, Department of Political Science, University of Kentucky. Email:

This past spring, during oral argument in TRUMP V. HAWAII (2018), Justice Elena Kagan raised the hypothetical of an “out-of-the-box kind of President,” an avowed anti-Semite who bans immigration from Israel. What are the limits, Kagan asked, to the president’s immigration authority? Notably, the question appears to fly in the face of a modern Supreme Court that “regularly idealizes the President as specially equipped to act responsibly and competently in external affairs” (p. 309). This idea – that the Supreme Court has improperly ceded constitutional authority to the executive in foreign affairs – provides the central theme of Louis Fisher’s SUPREME COURT EXPANSION OF PRESIDENTIAL POWER: UNCONSTITUTIONAL LEANINGS.

The book reviews the historical and legal record concerning executive power and Fisher covers a wide swath of territory. He devotes the initial chapters to analyzing separation of powers principles as well as precedents from the 18th and 19th centuries, arguing forcefully that the Framers intended for the executive and legislature to share power in the conduct of foreign affairs. Even Lincoln, who so aggressively used executive authority during the Civil War, recognized basic limitations. During THE PRIZE CASES (1863), his administration argued that the right to initiate a conflict belonged exclusively to Congress. But Fisher contends that, decades later, a fundamental shift occurred. Reviewing in detail the conduct of every administration since World War II, he finds presidents becoming more aggressive in their assertion of plenary foreign affairs power. He also expresses alarm about a Court that has become willing to accede. In each chapter, Fisher nicely blends a review of the historical record by examining the major actions of the executive branch with analysis of the most important case law.

The heart of Fisher’s critique points to the Supreme Court’s careless use of dicta in its opinions, which has compounded presidential authority over time. The primary object of this sloppiness is UNITED STATES V. CURTISS-WRIGHT EXPORT CORPORATION (1936). The opinion made passing reference to the president as the “sole organ” of the country in international affairs and although it was not central to CURTISS-WRIGHT’s resolution, the sole-organ doctrine featured prominently in subsequent cases. The executive branch, Fisher argues, bears some responsibility for the Court’s overreliance on the doctrine, since presidents insistently cited the CURTISS-WRIGHT dicta time and again. But the justices also erred. By the end of the 20th century, the Supreme Court accepted the misguided proposition that CURTISS-WRIGHT established plenary executive power in foreign affairs, opening the door to a host of presidential misjudgments from Vietnam to the War on Terror.

One of the book’s most interesting contributions concerns how legal errors and presidential misrepresentations shaped U.S. foreign affairs. The sole-organ doctrine provides the prime example. Not only did the Court come to accept dicta as a central legal precept, but the CURTISS-WRIGHT opinion itself misread a John Marshall speech that referenced the idea. Fisher argues that when the speech is read in its entirety, it becomes clear that Marshall did not believe the executive wields plenary foreign affairs power; rather, Marshall was defending the president’s ability to carry out a treaty provision. In other words, the president acts as the sole organ only for the purposes of [*43] implementation. The CURTISS-WRIGHT Court obscured this nuance.


Vol. 28 No. 4 (July 2018) pp. 39-41

FREE SPEECH ON CAMPUS, by Erwin Chemerinsky and Howard Gillman. New Haven, CT: Yale University Press, 2017. 216 pp. Cloth $26.00. ISBN: 978-0-300-22656-0.

Reviewed by Eric T. Kasper, Department of Political Science, University of Wisconsin-Eau Claire. Email:

Today there are frequent news stories about free speech conflicts on college campuses. Indeed, whether it is a faculty member who is disciplined for making controversial comments online, students who are reprimanded for protesting on campus, or the additional security measures universities must take to accommodate a provocative speaker, issues of free speech conflicts on college campuses seem to arise on a regular basis. How to protect the freedom of expression while also safeguarding the learning environment and other university functions is something that needs to be addressed by every college and university, public or private.

Given these facts, Chemerinsky and Gillman’s FREE SPEECH ON CAMPUS is a welcome book. Although they begin by reminding us that these free speech battles are nothing new – “controversies over freedom of speech on college campuses have existed as long as there have been college campuses” (p. ix) – they address the unique challenges that this issue presents in the contemporary age.
The book recognizes that disputes over these issues often polarize into two camps: those who think college students today are being “coddled” by a politically correct culture and those who appear to devalue the freedom of expression. Chemerinsky and Gillman think both poles of this debate are misplaced, and they offer a middle ground to simultaneously protect freedom of expression and the learning experiences of students from marginalized groups. Their central thesis is that “all ideas and views should be able to be expressed on college campuses, no matter how offensive or how uncomfortable they make people feel. But there are steps that campuses can and should take to create inclusive communities where all students feel protected” (p. 19). Although the authors acknowledge that the First Amendment applies solely to public colleges and universities, they also advocate that private campuses should adhere to the same standards (p. xi).

Chemerinsky and Gillman wrote the book after their experiences teaching a freshman seminar on the freedom of speech. They found that between the students in their class and a 2015 Yale survey of college students, students today do not support the freedom of expression fully because they fail to make the connection with this right historically protecting vulnerable populations (pp. 9-10). While this may be true, this premise of their book could be supported by more data than one survey and anecdotes from their class. Nevertheless, assuming that there are students, faculty, and administrators who have less zeal for the freedom of expression than the authors – who classify themselves as “strong free speech advocates” (p. 12) – they lay out the case for vigorously protecting this right, even if it includes protecting some forms of hate speech.

Chapter two explains the importance of the freedom of speech, including how it relates to ensuring the freedom of thought, its relation to democratic self-government, and the problems of censorship. The authors make the point that historically, “censorship has always been on the side of authoritarianism, conformity, ignorance, and the status quo, and advocates for free speech have always been on the side of making societies more democratic, more diverse, more tolerant, more educated, and more open to progress” (p. 27). They then go on to trace the troubled earlier history of the freedom of speech in the U.S., showing how it was not until the last half century that the right received the level of the protection it has now. They provide a comprehensive history of this progression in American politics and in the U.S. Supreme Court, although this background concludes in the early 1970s.

Chapter three is devoted to a history of academic freedom. Chemerinsky and Gillman start by [*40] sketching how historically, higher education was founded much more on indoctrination than free thought. They then explore how this slowly changed, due to organizations such as the Royal Society of London for Improving Knowledge and the American Association of University Professors, and they discuss the important role of the Berkeley Free Speech Movement. Likewise, they describe how the U.S. Supreme Court, in cases like KEYISHIAN V. BOARD OF REGENTS (1967), enshrined academic freedom into the First Amendment’s protections. Where they could go a step farther here, though, is in exploring more recent Court decisions that have largely characterized academic freedom as an institutional right rather than as an individual right.


Vol. 28 No. 3 (June 2018) pp. 36-38

THE AMERICAN LEGAL PROFESSION: THE MYTHS AND REALITIES OF PRACTICING LAW, by Christopher Banks. CQ Press, 2018. 144pp. Paperback $23.00. ISBN: 9781506333120.

Reviewed by Todd Collins, Steed Distinguished Professor of Public Policy, Department of Political Science and Public Affairs, Western Carolina University. Email:

Christopher Banks’ new book, THE AMERIACN LEGAL PROFESSION: THE MYTHS AND REALITIES OF PRACTICING LAW, provides an insightful evaluation of the law school application process, the law school experience, and the current state of the legal profession. Banks provides a strong mix of standard law school advice, review of recent scholarship, and data related to everything from law school rankings to the average salary of associate attorneys at “Big Law” firms. In addition to potential law students, this book would be a great read for new faculty or those recently assigned pre-law advising duties. It is also a worthy addition to the shelves of those that have been advising pre-law undergrads for many years.

The opening chapter introduces the purpose of the book and points out the modern perceptions and misconceptions of the practice of law, many of which stem from fictional characterizations of attorneys. Chapter 2 provides a very detailed examination of the law school application process. Much of the information here may already be known to those who have been advising students for some time, such as the standard advice that there is generally no “one” major needed to get into law school. This chapter also includes a good discussion of choosing the right law school, preparing for the LSAT, and the misconception that everyone makes a lot of money and is happy as an attorney, a theme the author returns to often in the book. While the information provided is fairly typical for pre-law advisors, what is very useful is that the author includes updated data and recent scholarship concerning these topics. Even for the experienced pre-law advisor, the updates and citations to scholarly works are well worth exploration.

Chapter 3 describes a brief history of the training of attorneys and portrays the modern law school experience. Again, much of the information here will likely be known to those that have advised for some time, such as the fact that social science perspectives on legal issues are not generally taught in law schools and that most of a student’s grade for a course is dependent on one final exam. A very useful section also discusses the bar exam and licensure requirements, something that many pre-law advisors may not include in their standard talking points, but is very important given the low bar passage rates of some law schools operating today. Again, this section is peppered with a significant amount of new data and references to recent inquiry into these issues.


Vol. 28 No. 3 (June 2018) pp. 33-35

THE JUDICIAL PROCESS: LAW, COURTS, AND JUDICIAL POLICYMAKING*, by Christopher P. Banks and David M. O’Brien. Los Angeles: CQ Press, 2016. 400 pp. Paper. $88.00 ISBN: 978-1-4833-1701-4.

Reviewed by Claire B. Wofford, Department of Political Science, College of Charleston. Email:

While there has been no shortage of dismay among academics about the various activities and policies of the Trump administration, there is one development that most law and courts scholars surely favor: the renewed focus on the legal system. Indeed, a new story appears nearly every day about how some legal actor (lawyer, judge, private litigant, interest group) has turned to the courts to manage the current president. Aside from the pending litigation about the travel ban, the Emoluments clause, and the prohibition of transgender troops in the military, there is also the ongoing saga of the Mueller investigation and the additional legal inquiries it has spawned. Though the general public may not follow all of this as closely as academics, it is hard not to notice that the judiciary has moved front and center in American politics.

If these developments spark student interest in law and courts the way the 2018 election seemed to do for American political science generally, then Christopher P. Banks and David M. O’Brien’s newest collaboration for undergraduate courses arrives at a particularly fortuitous time. Judicial process textbooks appear regularly (these same authors published a similar one in 2008, reviewed in these pages in November of 2007) and meet our pedagogical needs with varying degrees of success. But given both the strengths of this book itself and the increasing reliance of many on the judiciary to rein in the current executive, this textbook may prove even more apropos and popular than its authors could have foreseen.

Similar to their prior text, THE JUDICIAL PROCESS: LAW, COURTS, AND JUDICIAL POLICYMAKING is divided into four major sections, which are then subdivided into chapters, with two to four chapters per section. Part 1, entitled “Law and Political Jurisprudence in a Globalized Society” contains the “Politics of Law and Courts in Society” and the “Politics of Law and Jurisprudence.” Part 2 is the more traditional “nuts and bolts” of the judicial process, with chapters on federal and state court organization and administration as well as judicial selection and removal. In Part 3, “Access to the Courts and Judicial Decision-Making,” the authors cover the legal profession and practice of law, formal and discretionary barriers (such as standing and mootness) to accessing courts, and the processes and procedures of both criminal and civil trial courts. The book concludes with Part 4, “Judicial Policymaking,” which includes chapters on appellate court decision-making and the extent of, and limits on, judicial policymaking power.


Vol. 28 No. 3 (June 2018) pp. 31-32

AMERICAN JUDICIAL POLITICS: MYTH AND REALITY IN LAW AND COURTS, by Pamela C. Corley, Artemus Ward, and Wendy L. Martinek. New York, NY: Routledge, 2016. 474pp. Paper $86.95. ISBN: 9780415532983.

Reviewed by Todd C. Peppers, Department of Public Affairs, Roanoke College.

The request to review AMERICAN JUDICIAL POLITICS: MYTH AND REALITY IN LAW AND COURTS (herein after AMERICAN JUDICIAL POLITICS) came at an especially opportune time, namely, as I was preparing to teach my spring Judicial Process course. While the textbook for that course had been ordered, I decided to use AMERICAN JUDICIAL POLITICS as a supplemental text from which to prepare for class. Accordingly, as I prepared my lectures, class exercises, and class discussion topics, I read the assigned readings from the course text as well as the equivalent readings from AMERICAN JUDICIAL POLITICS. In short, I had the rare opportunity to give the textbook a “test run” in my own class. Overall, I was generally pleased with the results.

Over the last fifteen years, I have used and consulted a variety of textbooks and supplemental readings while teaching Judicial Process. What I have found is that a comprehensive judicial process textbook must cover the following (in no particular order): the different types of laws and their functions in society; the organization of the federal and state judiciary and the different functions of the courts therein; the background, selection and qualification of judges; the role of other legal actors (such as lawyers, litigations, and interest groups) in the legal system; legal and extra-legal theories of judicial decision-making; the civil and criminal trial process; and the implementation and impact of judicial policymaking. From this laundry list of topics, some textbook authors have differentiated their products by including additional topics such as dedicating a chapter to comparative judicial systems or spending more time on the finer points of the methods of legal interpretation.

My guess is that the authors of AMERICAN JUDICIAL POLITICS recognized the need to distinguish their book from the ordinary. They accomplished this goal in several ways, both large and small. First of all, the book is a pleasure to read. The authors pack a lot of information into the textbook, and they do so with a combination of accessible writing, easy-to-follow charts and graphs, and memorable pictures. The range and variety of photographs alone suggest the time and attention put into this project. Given the challenges of teaching this generation of undergraduate students, this book is designed to hold their attention.


Vol. 28 No. 3 (June 2018) pp. 27-30

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:

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.