WHO IS TO JUDGE?: THE PERENNIAL DEBATE OVER WHETHER TO ELECT OR APPOINT AMERICA’S JUDGES

Vol. 29 No. 8 (September 2019) pp. 94-95

WHO IS TO JUDGE?: THE PERENNIAL DEBATE OVER WHETHER TO ELECT OR APPOINT AMERICA’S JUDGES, by Charles Gardner Geyh. New York: Oxford University Press, 2019. 195pp. Hardcover $29.95. ISBN: 9780190887148

Reviewed by Michael K. Romano, Department of Political Science, Shenandoah University. Email: mromano@su.edu.

One of the most contentious debates between scholars of state courts and legal academics has been examining which institutions of judicial selection and retention better elevate accountability over independence (and vice versa). While other debates find satisfaction in the fact that researchers on both sides can agree their opposition makes some valid points, the conflict between accountability-based and independence-based proponents has normative connotations regarding the nature of democratic norms, and neither side has seemed willing to give ground to the other’s ideas. Charles Geyh’s WHO IS TO JUDGE?: THE PERENNIAL DEBATE OVER WHETHER TO ELECT OR APPOINT JUDGES attempts to add to this debate by calling a truce. Geyh replaces rigid orthodoxy with introspection to draw new attention to the debate over how to design judicial institutions; his focus on the pros and cons of both sides of the debate is valuable as it requires the reader to engage rather than isolate themselves in their own ideological bubble. The work’s significance is not in new findings or sophisticated empirical techniques, but rather in how it draws attention to deeper theoretical and methodological questions concerning how we examine, and indeed how we understand, how courts operate in the United States.

The book posits that the accountability/independence debate has proven to be less than useful in generating an institutional design that can find balance between countervailing claims for legitimacy This thesis is important for several reasons, not the least of which is a signal from legal reformers like Geyh whom have written extensively about “Why Judicial Elections Stink” (2003). The premise of the argument presented in WHO IS TO JUDGE? is fairly simple: if scholars on both sides take a step back from the debate and look carefully, we will find that we have all been wrong in some ways, and that being “engagingly pugnacious but wrong is no virtue” (p. ix). What Geyh tries to do, through in-depth research into the histories of institutional change as well as engagement with countless years of empirical research, is to find the line between what we currently have evidence to support and disprove about the stigma of judicial elections, and to consider a new way forward for institutional designers concerned about the judiciary. Enlisting advice from some of Law and Court’s foremost scholars on state courts, the book plays out like a tennis match between arguments for and against judicial elections in an attempt to find balance. Additionally, the book includes a concise but rich history of the normative rationales behind why states diverged along different paths when designing state judiciaries.

In some ways, the main benefit of the book – much like his previous writings about how judicial elections “stink” – is that Geyh provides empirical and legal scholars alike new areas to investigate and analyze. The book is devoted to discussions of how our cognitive biases can cloud our ability to see the evidence for what it is: the legal field was wrong for assuming with no evidence that judicial elections would lead to the outright degradation of the courts, and political scientists were wrong for trying to artificially inflate the importance of their findings when they were based on limited data. To provide support, Geyh wades through decades of scholarship in an attempt to analyze where the debate has been and where it is headed. The final product for Geyh is a new set of “incremental reforms” that the legal world will likely consider worthwhile to implement, and scholars in judicial behavior will likely treat as testable hypotheses going forward. [*95]

AWAKENING: HOW GAYS AND LESBIANS BROUGHT MARRIAGE EQUALITY TO AMERICA

Vol. 29 No. 8 (September 2019) pp. 91-93

AWAKENING: HOW GAYS AND LESBIANS BROUGHT MARRIAGE EQUALITY TO AMERICA, by Nathaniel Frank. Cambridge: Harvard University Press, 2017.

Reviewed by Edward F. Kammerer, Jr., Department of Political Science, Idaho State University. Email: kammedwa@isu.edu.

Nathaniel Frank’s AWAKENING: HOW GAYS AND LESBIANS BROUGHT MARRIAGE EQUALITY TO AMERICA provides a through, detailed account of how same-sex marriage went from a fringe idea laughed out of the Supreme Court in the 1970s to the law of the land, supported by a majority of the American public, in less than 50 years. The book is largely organized chronologically, moving through early gay and lesbian activism in the 1950s to early same-sex marriage litigation in the states to the landmark Supreme Court decision legalizing same-sex marriage, OBERGEFELL V. HODGES in 2015. Frank concludes the work with post-OBERGEFELL actions around implementation and briefly touches on future issues regarding recognition and non-discrimination laws.

The chronological organization supports the author’s goal of demonstrating the country’s gradual awakening to the importance of same-sex marriage and the incremental process by which it was achieved. Throughout the book, Frank provides significant detail into the legal and political strategies used to argue for, and eventually win, marriage equality. This detail is the book’s clear strength. The path to marriage equality was not straightforward or singular and Frank highlights many of the internal debates over goals and strategies. The detail that Frank provides contributes to the literature on cause lawyering, impact litigation, and social movements.

In Chapter One, Frank provides an interesting jumping off point for the debate on marriage equality by framing it as a movement goal. He discusses two articles published in ONE, an early gay magazine, that addressed the topic of marriage for gay men. Frank first describes an article from 1963 in which the author makes the case that marriage is preferable to singlehood, and that marriage is a path toward self-respect for gay men. He juxtaposes this with an earlier article, from 1953, whose author was horrified that acceptance of gays and lesbians in society would lead to the kind of confining respectability that marriage entails. Frank starts with these articles to show that the idea of same-sex marriage is not as recent as many might assume, but also to show the divisions within the LGBTQ community with respect to marriage and its importance. He continually makes reference to this division as he recounts the history of marriage equality. The following chapters discuss early efforts at relationship recognition, starting with the first push for marriage equality itself in the 1970s. While the marriage equality movement did not take root, other forms of relationship recognition did at this early stage. Domestic partnerships and other local laws provided some protection for same-sex couples in limited circumstances. More importantly, though, Frank notes how these local changes became the foundation on which marriage would later be built. He discusses the impact of AIDS, sodomy law repeal efforts, and gay and lesbian parenting.

Several chapters in the book are dedicated to key junctures in the marriage equality movement. The lawsuits in Hawaii and Massachusetts each receive a chapter, as do movement setbacks like the Defense of Marriage Act and the passage of Proposition 8 in California. Later chapters address the incremental state-by-state approach the movement adopted, and then the federal lawsuits that finally brought same-sex marriage to the entire country. These sections are rich in detail, but cover information that will likely be familiar to anyone who has previously studied the issue. But even those who are more familiar with the movement may learn new information about strategy debates and the behind-the-scenes discussions of movement actors. Those [*92] unfamiliar with these moments in LGBTQ activism will find these chapters particularly helpful in understanding the evolution of marriage equality and the context in which that evolution occurred.

THE POSITIVE SECOND AMENDMENT: RIGHTS, REGULATION, AND THE FUTURE OF HELLER

Vol. 29 No. 8 (September 2019) pp. 87-90

THE POSITIVE SECOND AMENDMENT: RIGHTS, REGULATION, AND THE FUTURE OF HELLER, by Joseph Blocher and Darrell A.H. Miller. New York: Cambridge University Press, 2018. 203pp. Paper $29.99. ISBN: 978-1-316-61128-9.

Reviewed by Charles F. Jacobs, Department of Political Science, St. Norbert College. Email: charles.jacobs@snc.edu.

According to data compiled by the Gun Violence Archive, the United States experienced 257 mass shootings from January through early August of 2019. This total includes a pair of recent events, one in El Paso, Texas and a second in Dayton, Ohio, that claimed the lives of nearly three dozen individuals and injured an additional 53. The reaction of the public, the press, and the political class echoed responses from earlier mass casualty events in places like Sandy Hook, Parkland, and Orlando—there were expressions of grief and anger, and calls for reform to gun control laws that currently allow the purchase of weapons that often lead to large-scale carnage hundreds of times each year. Advocates of both gun safety and gun rights dominate cable news programs in the days following these latest attacks, propounding often extreme and polarized views about the place of firearms in American society and culture.

It is in this political and social context that Joseph Blocher and Darrell A.H. Miller offer their relevant and well-argued tome THE POSITIVE SECOND AMENDMENT: RIGHTS, REGULATION, AND THE FUTURE OF HELLER. With their comprehensive and honest deconstruction of the constitutional language surrounding the right to bear arms, the authors provide a frank review of the “history, doctrine, and jurisprudence” (p. 4) that helps to define the debate and disagreement over the place of the Second Amendment in contemporary America. In doing so, Blocher and Miller offer insights into what the decisions of the United States Supreme Court in both DISTRICT OF COLUMBIA V. HELLER and MCDONALD V. CITY OF CHICAGO accomplished and the questions that remain in the aftermath of the establishment of the right of individuals to keep and bear arms.

The authors offer a multi-faceted argument that is certain to cause an equal amount of consternation among those who align themselves with constitutional absolutists promoting unfettered gun rights, as well as those who argue for significant controls on the right to own firearms. As they note, “The Second Amendment is complicated and nuanced. There are no easy answers and nothing in this book will fully satisfy the extremists” (p. 4). This forms the basis of their claim that activists on both sides are wrong in their interpretation and understanding of the Second Amendment. Blocher and Miller argue that “To make sense of the political debate, then, not to mention the current state of the law, one must also understand the Constitution itself” (p. 4). Their goal is to define “the substance and method of Second Amendment law” by clarifying the scope and purpose of this fundamental liberty and to provide a common interpretation of the limits of the freedoms it provides and the limits that may be imposed upon those freedoms. In doing so, the authors additionally hope to provide what they describe as a positive account of the amendment, by which they mean “a vision of the Second Amendment that is affirmative and constructive, a creature of constitutional rather than natural law, and also one that provides some right and wrong answers” (p. 5). The result, they suggest, will be an opportunity to dissolve some of the rancor in the debate over gun rights by providing a foundation from which to discuss relevant policy alternatives in a less [*88] politically polarized environment. The arguments the authors present orbit around the decisions offered by the justices in HELLER and MCDONALD. Blocher and Miller dissect the Court’s interpretation of the Second Amendment and provide insight into the questions and issues that remain to be resolved through future litigation.

IMMIGRATION AND DEMOCRACY

Vol. 29 No. 7 (August 2019) pp. 79-86

IMMIGRATION AND DEMOCRACY, by Sarah Song. New York: Oxford University Press, 2019. 192 pp. Cloth $34.95. ISBN: 9780190909222

Reviewed by John S.W. Park, Department of Asian American Studies, University of California, Santa Barbara. Email: jswpark@asamst.ucsb.edu.

Toward the middle of her book, IMMIGRATION AND DEMOCRACY, Professor Sarah Song notes that many intellectuals have stopped defending a thick, robust national sovereignty, at least in terms of an unqualified right of nation-states to control immigration. Instead, she claims, “open borders” has become a “dominant position among philosophers and political theorists writing about immigration” (p. 75). Song argues for an intermediate position, something between open borders and blunt forms of national sovereignty: “what is required is neither closed nor open borders but controlled borders and open doors” (p. 77). She devotes the first third of her book to critiques of existing accounts of national sovereignty, the next third to how open borders still aren’t a good idea, and then the last third to outline her own position.

Professor Song gives reasons for why liberal nation-states should retain some level of sovereignty, and then why they should also provide generous policies for family reunification and for refugee admissions. She also gives reasons for why adjustments and legalization might be necessary for some long-term migrants, even those who entered unlawfully. Throughout, as in her other books, Professor Song brings an intellectual rigor to this project that is most admirable, and her writing is clear, accessible, and free of jargon, all of which makes this work an excellent choice for a wide audience. The rest of this review might sound overly critical, but the disagreements I’ll express should not detract from the tremendous respect I have for Professor Song in her attempt to find a reasonable middle position within this polarizing, acrimonious area of public law.

Many scholars — including Joseph Carnes, Kevin Johnson, and Ayelet Shachar — have indeed questioned the ways in which liberal democracies have assigned citizenship at birth and the ways citizens have excluded others through law and policy, often in racist ways. Liberal democracies practiced race-based forms of exclusion ever since they were established, and even though their framers stated lofty principles about the inalienable rights of all “men,” they excluded all women and people of color from full citizenship. “Indians not taxed,” “the migration and importation of such persons” — these phrases from the United States Constitution alluded to certain kinds of people whom the framers did not consider citizens or capable of citizenship. It’s an older, deeper problem than just in the immigration law. The Supreme Court went on to say that Native Americans were members of “domestic dependent nations,” that the members of various tribes were not American citizens, and thus the individual members of those tribes didn’t really have “constitutional” rights.

Slaves posed other problems: they were dangerous, and for white people lots of slaves living among a smaller group of white people were even more dangerous, so the framers envisioned a time when the federal government might want to stop its citizens from “importing” such persons. That, too, as a constitutional provision in Article I, was as much a migration rule as it was a limit on the right of Congress to regulate the American citizens participating in that particular market. In cases like DRED SCOTT (1857), African people appeared as property, not as persons at all, and although this provision might seem as though it’s not about migration, it was. Indeed, if we look at that provision along with the one in Article IV, about how the United States shall protect every state from “domestic violence,” and if we combine [*80] this with what we know already about slave revolts in the late 17th and 18th centuries, we can see how the framers worried about their own slaves, about how there could be too many slaves, and how, if an insurrection did occur, they’d want the federal government to step in. White men wrote the constitution to protect their “property” and allay the fears of other white men.

BEYOND ABORTION: ROE V. WADE AND THE BATTLE FOR PRIVACY

Vol. 29 No. 7 (August 2019) pp. 75-78

BEYOND ABORTION: ROE V. WADE AND THE BATTLE FOR PRIVACY, by Mary Ziegler. Cambridge: Harvard University Press, 2018. 383pp. Hard Cover $45.00, ISBN-10: 9780674976702.

Reviewed by Boleslaw Z. Kabala, Department of Government, Legal Studies, and Philosophy, Tarleton State University. Email: kabala@tarleton.edu.

The right to privacy is particularly relevant today in the context of social media’s illegal sales of hundreds of millions of private citizens’ records, the recent explosion in the crime of identity theft that involves stealing of billions of private records from government and industry databases (Leskin 2018), and our own government’s growing surveillance of hundreds of millions of Americans. Mary Ziegler’s book, BEYOND ABORTION: ROE V. WADE AND THE BATTLE FOR PRIVACY, explores the ROE V. WADE decision and its impact on the formulation and understanding of the right to privacy.

The main thesis of BEYOND ABORTION is that the right of privacy was, and still is, shaped not only by ROE v. WADE, but also and primarily by the reinterpretations of the decision promoted by activists from a wide range of social movements. These reinterpretations have affected the way courts themselves interpreted the law concerning intimate relations (both in and outside of marriage) and sexual liberty (for heterosexuals, homosexuals, and bisexuals), medical authority, mental illness, the right to refuse medical treatment, death and dying. Ziegler argues that the ROE decision and its reinterpretations by activists are, in one way or another, central to all these issues.

The book is well organized and written clearly, with approximately chronological chapters organized by theme. The targeted audience is that of educated laypeople with a penchant for law and politics. The author documents how diverse movements and their activists, from both liberal and conservative backgrounds, were central in each of the spheres mentioned and how they relied on ROE in different ways to develop privacy claims.

Chapter 1 presents the history of right to privacy and many ROE related details. Chapter 2 covers the story of the ACLU Sexual Privacy Project, dealing with issues of gay and lesbian rights, and the movements that secured sexual freedoms by challenging in Court the moral and sodomy laws (laws against certain types of sex, against fornication, against living with a boyfriend or a girlfriend without marriage, etc.). These decisions extended the privacy guarantees of ROE to the private space of one’s bedroom. The ACLU project also covered reforming laws on marital rape and pornography, and other key issues.

Chapter 3 analyzes the use of the ROE decision and its privacy arguments to reform what many considered abusive psychiatric practices and treatment of the mentally ill: civil commitment against one’s will without providing effective medical treatment and the patient’s right to refuse treatment. Groups of former or current mental patients and their activists used ROE to stand for the right to make their own medical decisions.

DECISION MAKING AND CONTROVERSIES IN STATE SUPREME COURTS

Vol. 29 No. 7 (August 2019) pp. 72-74

DECISION MAKING AND CONTROVERSIES IN STATE SUPREME COURTS, by Salmon A. Shomade. Lanham: Lexington Books, 2018. 136pp. Cloth $90.00. ISBN: 978-1-4985-4299-9.

Reviewed by Jenna Becker Kane, Department of Political Science, West Chester University. Email: jbeckerkane@wcupa.edu.

In DECSION MAKING AND CONTROVERSIES IN STATE SUPREME COURTS, Salmon A. Shomade examines the effects of public controversies on the decision-making of state supreme court justices. Although this group is not often viewed as those most likely to become embroiled in political scandals, some state supreme court justices have found themselves entangled in public controversies that raise public awareness and scrutiny of these multi-member courts. Scholars typically treat these controversies as anecdotal stories of judges acting badly but Shomade adeptly recognized these instances as an opportunity to examine a previously unexplored aspect of collegial court behavior – how public controversies affect judicial decision-making. Shomade considers three instances of public controversies that affected the supreme courts of Alabama, Louisiana, and Wisconsin and examines the behavior of state supreme court justices before, during, and after the onset of public controversy. Through this examination, Shomade tests five competing models of judicial decision-making (legal, attitudinal, strategic, role values, and group interaction) to assess their applicability to collegial court decisions in the wake of public scrutiny.

For each case study, Shomade provides the necessary background regarding the controversy that arose, the justices involved, and the historical and institutional context in which the controversy took place. He then examines data on the voting behavior of each high court judge for a two-year period both prior to and following the public controversy in order to assess if the ensuing scandals prompted a change in voting behavior on the courts. Shomade gathered data on the rate of unanimous votes, majority joins, and dissents both as a court and individually for each judge. To supplement this quantitative examination, the author also investigates the full-text of state supreme court decisions to look for evidence of changes in opinion writing behavior between the judge(s) involved in the controversy and their colleagues on the court.

Shomade’s first, and most well-developed, case study examines the controversy surrounding a Ten Commandment display at the Alabama Judicial Building. Former state supreme court Chief Justice Roy Moore’s decision to install – and then his eventual refusal to remove – the display came under public scrutiny between 2001 and 2003. After a federal district court ruled the display an unconstitutional governmental establishment of religion, Moore defied the court ruling by refusing to remove the display despite the threat of a $5,000 per diem fine. Moore’s public position on the issue rallied public support for the monument, which included public demonstrations and continued appeals in the courts. Throughout the ordeal, Moore’s colleagues on the court remained silent and refused to invoke an administrative procedure that would allow them to override the chief justice’s decision to keep the monument. It wasn’t until Moore’s legal challenges were exhausted and a court-imposed deadline loomed that Moore’s colleagues on the Alabama Supreme Court ultimately voted unanimously to remove the monument.

The second high court controversy considered stemmed from an internal dispute within the Louisiana Supreme Court in 2013 over the elevation of Justice Bernette Johnson as the state’s first African-American chief justice. Upon the retirement of then Chief Justice Catherine Kimball in 2012, a controversy arose regarding who on the court had legal claim to the position of chief justice. According to Article V, Section 6 of the Louisiana Constitution, the position of chief justice is awarded to the “judge oldest in point of service.” [*73] (La.Const. art. V, §6) Having been appointed to the Court in 1994, Justice Johnson laid claim to the position as the longest-serving judge on the court. She was challenged by Justice Jeffrey Victory who joined the court in 1995 and contested Johnson’s claim to the chief justiceship on the grounds that she was initially appointed to the court rather than elected. Following a public controversy over the role race may have played in the elevation dispute and a subsequent lawsuit, the Louisiana Supreme Court determined that Justice Johnson had the rightful claim to the chief justiceship under the state’s constitution.