IDEAS WITH CONSEQUENCES: THE FEDERALIST SOCIETY AND THE CONSERVATIVE COUNTERREVOLUTION

Vol. 26 No. 8 (December 2016) pp. 160-164

IDEAS WITH CONSEQUENCES: THE FEDERALIST SOCIETY AND THE CONSERVATIVE COUNTERREVOLUTION, by Amanda Hollis-Brusky. Oxford University Press, 2015. 252pp. Hardback $29.95. ISBN: 978-0-19-938552-2.

Reviewed by Brandon L. Bartels, George Washington University. Email: bartels@gwu.edu.

Amanda Hollis-Brusky’s award-winning book sets out to explain how the Federalist Society (FS) has exhibited influence in key areas of the law ultimately decided by U.S. Supreme Court.1 To orient her inquiry, Hollis-Brusky develops a compelling conceptual and theoretical framework centering on what she calls “political epistemic networks” (PENs), of which the FS is an exemplar. Adapted from the “epistemic community” (EC) concept in international relations, a PEN is “an interconnected network of experts with policy-relevant knowledge who share certain beliefs and work to actively transmit and translate those beliefs into policy” (pp. 10-11). Network members share: (1) normative beliefs/principles; (2) causal beliefs regarding how to achieve those goals; (3) shared notions of validity (the “right” interpretation of contested texts); and (4) a unified policy vision. The corresponding elements for the FS specifically are: (1) “the State exists to preserve freedom;” (2) the separation of governmental powers is central to the Constitution for achieving this principle; (3) “originalism” is the only valid methodology for constitutional interpretation; and (4) implementing conservative and libertarian values into law.

The book draws an important distinction between ECs and PENs based on the nature of knowledge accumulation and transmission. ECs are scientifically-oriented; most claims about science are evidence-based and refutable (or falsifiable), meaning an EC is replaceable based on objective evidence. For PENs related to law, [c]laims to legal knowledge are non-refutable, politically contested,” and essentially subjectively oriented (p. 10). In addition, a PEN differs from a traditional interest group because it does not engage in direct lobbying as an organization per se. Yet it is more influential than a typical “audience,” from Baum’s (2006) perspective, that might exhibit more “psychological constraint” due to a judge or political actor being mindful of an audience when making decisions.

A PEN in general, and the FS in particular, is ultimately a powerful influence in law and/or politics because it lays down the intellectual capital for a variety of issues that individuals in positions of power draw on when those issues appear on their agenda. A PEN legitimizes ideas that were previously thought to be outside the mainstream by elucidating theoretical and doctrinal foundations for those positions. In addition, a PEN seeks to vet individuals to make sure they are true believers before they gain admission to the club. They seek to put those vetted network members into positions of power and influence in order to procure constitutional and policy change. The FS has been quite successful on these fronts, due to the reach of their network to law schools (students and professors), judgeships, clerkships, think tanks, and government. True to the book’s title, the FS is in the “ideas” business, developing and disseminating legal philosophies and doctrinal ideas with the hope that they will have the ultimate “consequence”—being adopted by the U.S. Supreme Court.

After the theoretical chapter, the core of the book’s argument and evidence centers on Parts I and II. Part I assesses the FS’s influence on preserving freedom via the individual right to bear arms (Chapter 2) and campaign finance (Chapter 3). Part II focuses on separation of governmental powers (primarily federalism) via key Commerce Clause cases (Chapter 4) and the Tenth Amendment (Chapter 5). Part III (Chapter 6) focuses on broad processes by which the FS has influenced the “conservative counterrevolution” on the Supreme Court. [*161]

As I read the introduction and Chapter 1, I was thinking that the book’s ultimate success would turn on an intricate demonstration of the process by which the FS’s ideas and intellectual foundation have infiltrated and filtered their way up to official ranks of power, including the Supreme Court. It’s the “how” that drives the scholarly contribution. In my opinion, the book mostly succeeds on that front, but I do have some ideas on how the book could have crystallized the story, which also provides feedback for the future direction of this research agenda. My comments below center on: (1) the nature of FS influence and how it is demonstrated; and (2) the validity of the phrase, “conservative counterrevolution.”2 On the whole, the book stimulated a great deal of thought, and I believe it will do the same in the intellectual community—both in political science and the legal academy.

CRAFTING COURTS IN NEW DEMOCRACIES: THE POLITICS OF SUBNATIONAL JUDICIAL REFORM IN BRAZIL AND MEXICO

Vol. 26 No. 8 (December 2016) pp. 157-159

CRAFTING COURTS IN NEW DEMOCRACIES: THE POLITICS OF SUBNATIONAL JUDICIAL REFORM IN BRAZIL AND MEXICO, by Matthew C. Ingram. New York: Cambridge University Press, 2016. 392pp. Hardback $110.00. ISBN: 9781107117327.

Reviewed by Lisa Hilbink, Department of Political Science, University of Minnesota. Email: hilbink@umn.edu.

Scholars of law and courts in the United States often take for granted the institutional integrity and independence of the judicial branch. Some focus on how to maintain judicial independence in the face of perceived or potential threats, and others fret about independent/unaccountable judges having too great a role in deciding fundamental policy issues, but the question of where strong and independent judicial institutions come from is mostly ignored or left to historians. For those who work on new (or renewed) democracies, by contrast, the question of how to construct (or reconstruct) stable, independent judiciaries is of fundamental concern, not just for scholars, but for citizens of those countries seeking to hold public and private actors accountable for legal violations. With Crafting Courts in New Democracies, Matthew Ingram offers an innovative and compelling contribution to this important line of research.

Drawing on both quantitative and qualitative evidence from the subnational (state) level in two major federal countries, Brazil and Mexico, Ingram argues that the key to effective judicial reform is the presence of leaders in both the political and judicial spheres that share “nonmaterial, principled, programmatic commitments about the proper role of courts in democratic societies” (p. 3). These ideational commitments may be primarily political or economic in nature; however, while neoliberal economic ideas have sometimes motivated judicial reform, Ingram finds that the most robust reforms are driven by actors with left-liberal commitments to expanding democratic citizenship. Moreover, he highlights the role of judges themselves in persuading sympathetic politicians to propose and follow through with court-enhancing policies.

In making this argument, Ingram directly challenges dominant theories of judicial empowerment, which, though varying in their specific causal logics, are united in viewing reforms for more independent and effective courts as a strategic response by politicians to the uncertainty produced by electoral competition. These rational-strategic accounts assume that, out of material self-interest, politicians facing electoral competition will pursue judicial reforms as a means either of retaining or attaining office, or of preserving their policy preferences should they lose office. Ingram contends that such theories do not reliably account for the timing and content of court strengthening reforms, and can neither explain their absence where electoral uncertainty abounds nor their presence where they entail costly behavior on the part of political leaders. Absent ideational motivations, Ingram argues, electoral incentives are insufficient to drive reform.

Ingram develops this argument in eight chapters. After providing an introduction to and overview of the research question and argument in Chapter 1, he devotes Chapter 2 to the theoretical framework and competing arguments on judicial reform in the literature. Chapter 3 explains and justified the methods used in the empirical analysis, and provides basic background information on the six state-level case studies (three Mexican, three Brazilian). Chapter 4 offers a time-series, cross-section analysis of judicial spending (the dependent variable) across thirty-two Mexican states from 1993 to 2009. Chapter 5 does the same for twenty-seven Brazilian states between 1985 and 2007. With some caveats, these two chapters taken together demonstrate that, in both countries, electoral competition has mixed effects, and state governments on the political [*158] left “exert the most meaningful positive influence on judicial empowerment” (p. 53). Chapters 6 and 7, on Mexico and Brazil respectively, supplement the quantitative analysis by identifying a “well-predicted” state in each country and selected two other states on a “most similar” small-N research design. Based on 50-60 elite interviews in each country, as well as archival analysis, Ingram provides qualitative evidence to support the argument that “principled-ideological factors shape reform” (p. 53) and that politicians and judges on the political left are those behind the most robust judicial improvements. In the final chapter, Ingram lays out some “boundary conditions” and “interactions” that affect which parties press for judicial reform after transition to democracy. Even with these caveats, he is able to conclude that “programmatic commitments exert a meaningful and identifiable effect on the strength of state courts” (p. 281).

THE VIEW FROM THE BENCH AND CHAMBERS: EXAMINING JUDICIAL PROCESS AND DECISION MAKING ON THE U.S. COURTS OF APPEALS

Vol. 26 No 8 (December 2016) pp. 155-156

THE VIEW FROM THE BENCH AND CHAMBERS: EXAMINING JUDICIAL PROCESS AND DECISION MAKING ON THE U.S. COURTS OF APPEALS, by Jennifer Barnes Bowie, Donald R. Songer, and John Szmer. University of Virginia Press, 2014. 296 pp. Hardcover $45.00. ISBN: 978-0813935997.

Reviewed by Virginia Hettinger, Department of Political Science, University of Connecticut. Email: virginia.hettinger@uconn.edu

In The View from the Bench and Chambers: Examining Judicial Process and Decision Making on the U. S. Courts of Appeals, Jennifer Barnes Bowie, Donald Songer, and John Szmer provide the strongest contribution to scholarship on the United States Courts of Appeals that has been offered to date. It provides a rich trove of quantitative and qualitative evidence on decision making, agenda setting, oral arguments, and opinion assignment assembled in one place. The authors use the Courts of Appeals database and other publicly available data sources for their descriptive analysis and quantitative models, but the evidence drawn from formal interviews with 60 judges (and informal meetings with many more) is what distinguishes THE VIEW FROM THE BENCH from all other books on the Courts of Appeals. The book is well written and achieves a good balance between accessibility, rigor, and scholarly standards of transparency and documentation. Overall, the authors demonstrate that circuit differences are critical, attitudinal and legal factors are important, and Supreme Court or en banc review is a somewhat predictable, low cost, and a low probability event.

Chapter 1 provides a thorough descriptive introduction to judges on the Courts of Appeals. It covers selection and the related issues of partisanship, ideology, and representation. The authors then document the appellate process, caseload growth, and the mix of issues before these courts. This chapter does not break new theoretical or evidentiary ground. Instead, it provides a solid foundation for readers new to the appellate courts and a refresher for more familiar readers.

Chapter 2 represents the book’s most significant contribution, both substantively and empirically, and its richness paves the way for greater theoretical development in the future. The authors provide detailed explanations of how appeals court judges conduct their work and how they view their colleagues and themselves. The authors document variation in how the circuits have dealt with increasing caseloads by relying on staff attorneys, using procedural terminations, and managing access to oral arguments. The authors present models of opinion assignment and the decision to grant oral arguments. The opinion assignment model combines variables drawn from the extant literature with testable assertions drawn from interviews and provides systematic quantitative analyses of both types of assertions. In contrast, the hypotheses in the oral argument model rely heavily on the interviews and this section may have benefited from a bit more discussion of the agenda setting literature from the United States Supreme Court. Nonetheless, the authors demonstrate that oral arguments are more likely to be granted when non-circuit members participate in the decision, case complexity is higher, and the case involves a civil rights or civil liberties issue.

In Chapter 3, the authors examine disposition time, opinion length, and publication decisions. They again draw heavily on suggestions from the interviews with judges as well as on existing scholarship. Given the large number of judicial vacancies, the reliance on judges sitting by designation, and the growing caseloads faced by many circuits, the findings presented here have important theoretical and policy implications. This chapter and the one before it highlight the importance for scholars who conduct comparisons across courts, especially courts with substantial discretion, to understand that [*156] being granted oral argument or having a published decision in one circuit may mean something very different than it does in another. These chapters improve our understanding of those differences in the Courts of Appeals.

CONTESTING IMMIGRATION POLICY IN COURT: LEGAL ACTIVISM AND ITS RADIATING EFFECTS IN THE UNITED STATES AND FRANCE

Vol. 26 No. 8 (December 2016) pp. 152-154

CONTESTING IMMIGRATION POLICY IN COURT: LEGAL ACTIVISM AND ITS RADIATING EFFECTS IN THE UNITED STATES AND FRANCE, by Leila Kawar. New York: Cambridge University Press, 2015. 210pp. Cloth $113.00. ISBN: 9781107071117. Paper $32.99. ISBN: 9781107415119.

Reviewed by Michael T. Light, Department of Sociology, Purdue University. Email: mlight@purdue.edu

Nearly 3 million people were deported from the United States Between 2008 and 2015, roughly 270,000 more than over the entire last century.1 In recent decades, the incarceration of foreigners across Western societies has increased substantially as well. As of 2014, there were roughly 68,000 noncitizen incarcerated in U.S. state and federal prisons (Carson 2015), and almost 115,000 foreigners imprisoned throughout the European Union (Aebi et al. 2015). This is the backdrop against which Leila Kawar engages a very timely and salient question: what difference does law make in immigration policymaking?

As Professor Kawar points out, she is not the first to address this question. A considerable amount research has investigated the efficacy of shaping migration policy through legal interventions. That is, can the courts be a useful venue for constraining restrictionist immigration policies? In Professor Kawar’s assessment, the conventional wisdom resulting from this body of work is that the law has little impact on immigration policy matters (p. 153). In CONTESTING IMMIGRATION POLICY IN COURT, Professor Kawar makes a compelling and provocative argument for why this view is premature, or at the very least, incomplete. Her main thesis is that prior research in this area has focused too narrowly on official case dispositions and the degree to which these legal rules limit immigration policies. As a result, “we neglect to consider how the process of contesting immigration policy in court may constitute the very terms of immigration politics” (p. 10). This book seeks to address this oversight.

Using a constructionist sociolegal approach, Professor Kawar aims to broaden the purview of law and immigration research by “conceptualizing court-centered contestation of immigration policy as a culturally productive activity with potentially important radiating effects” (p. 10). Professor Kawar argues that high-profile legal contests have transformed the political debates and policy making surrounding immigration by injecting distinctly juridical forms into the taken-for-granted concepts and categories that have become public currency in the politics of immigration. Put differently, activity in the courts has reframed the political dialogue. In this regard, legal contestation has a far more expansive, or radiating effect, than has been conceptualized previously. Drawing on seven years of exhaustive archival research, analysis of legal documents and media coverage, and over 60 in-depth interviews with immigrant rights litigators in the United States and France, Chapters 2-5 explicate this central thesis.

THE CRITICAL LEGAL STUDIES MOVEMENT: ANOTHER TIME, A GREATER TASK

Vol. 26 No. 8 (December 2016) pp. 148-151

THE CRITICAL LEGAL STUDIES MOVEMENT: ANOTHER TIME, A GREATER TASK, by Roberto Mangabeira Unger. London & New York: Verso, 2015. 224 pp. Cloth $85.00. ISBN: 978-1-78168-340-8. Paper $26.95. ISBN: 978-1-78168-339-2.

Reviewed by Paul Baumgardner, Department of Politics, Princeton University. Email: pb9@princeton.edu.

In those American political science departments that still retain some interest in jurisprudence, it is not uncommon that critical legal studies is given short shrift. If any work related to critical legal studies is assigned, it is generally one work: legal philosopher Roberto Mangabeira Unger’s THE CRITICAL LEGAL STUDIES MOVEMENT (Unger 1986). For some reason, Unger’s text remains the go-to work when academics want to quickly flatten, characterize, and often caricature critical legal scholarship and the critical legal studies movement.

For this reason alone, it strikes me as shocking how little academic coverage there has been around Roberto Unger’s most recent book. Almost thirty years after the publication of THE CRITICAL LEGAL STUDIES MOVEMENT, Unger has released an updated version of his classic text. In this most recent publication, titled THE CRITICAL LEGAL STUDIES MOVEMENT: ANOTHER TIME, A GREATER TASK, Unger offers a renewed call to arms for the next generation of legal radicals. In addition to this war cry, the new introduction to the book provides a unique interpretation of the history of the leftist movement, including a highly controversial diagnosis of the reasons behind the movement’s demise. 

Unger begins with “The Context” behind updating the decades-old book (p. 3). This work began as an ambitious lecture on and for critical legal studies (hereinafter CLS), an “after-dinner speech, delivered at the Sixth Annual Conference in Critical Legal Studies” in March 1982 (p. 42). The speech was then published in the Harvard Law Review in 1983 and later turned into the important book. Unger has furnished a new edition, he tells us, “to place both the movement and the book in context and to reconsider both the book and the movement in the light of subsequent developments” (p. 3). Additionally, Unger intends “to look to the future, and to consider the vocation of legal thought now” (p. 3).

ENGINES OF LIBERTY: THE POWER OF CITIZEN ACTIVISTS TO MAKE CONSTITUTIONAL LAW

Vol. 26 No. 8 (December 2016) pp. 144-147

ENGINES OF LIBERTY: THE POWER OF CITIZEN ACTIVISTS TO MAKE CONSTITUTIONAL LAW, by David Cole, Basic Books, 2016. 308 pp. Hardcover $27.99. ISBN 0465060900.

Reviewed by Laura Van den Eynde, Center for Public Law, Université libre de Bruxelles (Belgium). Email: laura.van.den.eynde@ulb.ac.be.

In ENGINES OF LIBERTY, David Cole argues that the real drivers of constitutional change in the United States are not judges but committed citizens. He recounts in detail three different enterprises that shaped the understanding of constitutional provisions in recent years: the struggle for marriage equality, gun rights advocacy, and the curb of egregious counterterrorism measures adopted after 9/11. In a narrative style and combining interviews, analysis of documents, and participant observation (David Cole himself is involved in various civil society organizations and has litigated many cases), he presents these three case studies to point out that major transformations of U.S. constitutional law are less attributable to the Supreme Court than generally thought. Instead, he turns the spotlight to the multi-faceted work of dedicated individuals, in many instances outside the federal courts.

In his first example, the author traces the strategic choices that activists had to face along the way towards marriage equality. He portrays several individuals and organizations and presents the incremental victories and losses that ultimately led to the 2015 Supreme Court decision, OBERGEFELL V. HODGES, recognizing a constitutional right to marriage equality. In his next example, he traces the many-sided strategy of the National Rifle Association to pursue its goals, among which is the reading of the Second Amendment as guaranteeing an individual right to bear arms. In both instances it took the relentless work of committed individuals, designing a strategy of litigating in sympathetic states, discussing the issue in public events and private homes, fine-tuning their message to the general public, to obtain groundbreaking Supreme Court decisions. The protection of civil liberties after 9/11 faced different challenges: the actions had to be quickly reactive, there was a veil of opacity on the adopted counterterrorism measures, there were no state laws involved and no large constituencies to mobilize (p. 153). Civil society groups, such as the Center for Constitutional Rights or the ACLU, thus had to devise different strategies, for example spurring pressure from abroad. Through these three accounts, he demonstrates that constitutional change happened thanks to the work of citizens, trying to imprint the understanding of the Constitution with their own ideals.

This idea may not be so new — certainly since the creation of the Civil Rights Movement — but it is valuable to document and to record the efforts of relatively recent campaigns. Although Cole briefly mentions that inspiration was drawn from previous struggles — civil rights, right to vote for women, workers’ rights and abortion —, he could have inquired more deeply how campaigns inspired each other and which connections or networks were at play. As this idea is not new, Cole could also have drawn upon the abundant American literature on law and social change, legal mobilization and cause lawyering. For instance, Charles Epp argued almost 20 years ago that the increasing recognition of civil liberties was not only attributable to a blend of guaranteed rights, judicial independence, leadership of activist judges and rights consciousness in legal culture, but also to what he called the “support structures for legal mobilization”, consisting of organizations dedicated to establishing rights, committed and able lawyers, and sources of financing (Epp 1998). Even closer to the main idea of the book, there is the theory developed by Robert Post and Reva Siegel on the role that social movements play in creating new forms of constitutional understanding. Under the term ‘democratic constitutionalism’, they describe a process by which actors engage in norm contestation to challenge existing interpretations that can lead to changes over time (Post and Siegel 2007). It is thus regretful that the authors having formulated ideas close [*145] to those presented in this book are only discussed marginally, in the endnotes. Cole could have entered into dialogue with their theories by stressing his own contribution. Interested readers should have a look at an article he wrote in 2011 in which he develops the idea of “civil society constitutionalism”, calling for a reorientation of constitutional theory and practice and pointing out to the unique role played by civil society organizations to stand up for constitutional rights when they are dismissed by courts, by the political branches or even by “the people” at large (Cole 2011).

POLICING IMMIGRANTS: LOCAL LAW ENFORCEMENT ON THE FRONT LINES

Vol. 26 No. 7 (November 2016) pp. 141-143

POLICING IMMIGRANTS: LOCAL LAW ENFORCEMENT ON THE FRONT LINES, by Doris Marie Provine, Monica Varsanyi, Paul G. Lewis, and Scott H Decker. Chicago: University of Chicago Press, 2016. 206pp. Cloth $75.00 IBSN: 978-0-226-36304-2

Reviewed by Rebecca Hamlin, Department of Political Science, University of Massachusetts, Amherst (rhamlin@legal.umass.edu).

This book provides a fascinating and deeply troubling window into a relatively new and thus understudied phenomenon, the increasing role of local law enforcement in implementing federal immigration policy within the borders of the United States. There are many moving parts to this story, yet the four authors make an extremely complex situation intelligible by deftly outlining the constitutional and historical landscape, and then placing the various actors and their incentives and motivations neatly within that frame. The overarching message is that while the Department of Justice claims that geographically uneven enforcement of immigration law is unconstitutional, it is increasingly rampant because of recent federal efforts to enlist local police in the task of immigration enforcement. The authors argue that layering federal immigration policy on top of state level interventions, county and city level initiatives, and widespread officer discretion results in a “multijurisdictional patchwork” (p. 3) of inconsistent and unpredictable policies that are incompatible with basic notions of justice. This claim is well supported by the authors’ presentation of both national survey data and more detailed examinations of seven cities.

POLICING IMMIGRANTS: LOCAL LAW ENFORCEMENT ON THE FRONT LINES consists of five main chapters, each with a clear purpose. Chapter Two provides a concise history of the relationship between federal, state, and local government in the making and implementing of American immigration policy. This discussion is based primarily on the secondary literature, but it is remarkably comprehensive given its brevity. The authors explain that for most of the 19th century, immigration control was totally in the hands of state and local authorities. Then, beginning with the Chinese Exclusion Acts of the 1880s, the federal government began to assert authority over the policy area. Over the course of the 20th century, the federal government increased its capacity for enforcement, both at the border and internally, via raids. Federal authority went relatively unchallenged by the states until the 1990s, when the issue of illegal immigration gained political traction in many states, and gradually two simultaneous processes resulted. First, the federal government began to reach out to local law enforcement agencies to assist with immigration policy, and second, states began to pass their own immigration policies for the first time in over a century. Both of these activities gained momentum as federal failure to pass comprehensive immigration reform became a protracted reality.

IMMIGRATION JUDGES AND U.S. ASYLUM POLICY

Vol. 26 No. 7 (November 2016) pp. 138-140

IMMIGRATION JUDGES AND U.S. ASYLUM POLICY, by Banks Miller, Linda Camp Keith, and Jennifer S. Holmes. Philadelphia: University of Pennsylvania Press, 2015. 248pp. Cloth $69.95. ISBN: 978-0-8122-4660-5. Ebook $69.95. ISBN: 978-0-8122-9037-0.

Reviewed by Rebecca D. Gill, Department of Political Science, University of Nevada, Las Vegas. Email: rebecca.gill@unlv.edu.

In IMMIGRATION JUDGES AND U.S. ASYLUM POLICY, authors Banks Miller, Linda Camp Keith, and Jennifer S. Holmes undertake an enormous task. They attempt to develop a wide-ranging, data-driven understanding of the administrative decision-making processes surrounding petitions for asylum in the United States. What results is the most comprehensive empirical study of American immigration judges to date. Although this book may be difficult reading for lay audiences, it is undoubtedly a critical contribution to our scholarly and practical understanding of this important administrative process.

The breadth of the analysis in this book is made possible by the extraordinary efforts of the authors to generate an original dataset of over half a million asylum cases between 1990 and 2010. The scope of this project is truly breathtaking. Using these data, the authors develop and test what they call a “cognitive” model of immigration adjudication, upon which they build a number of empirical analyses to test various attitudinal, strategic, and contextual hypotheses about the decision making process. Overall, they find that asylum decisions are driven largely by the policy predispositions of the Immigration Judges (IJs), along with a variety of other factual and contextual elements.

Chapters 1 and 2 of the book serve as an introduction to the project. Here, the authors provide a thorough, no-nonsense overview of the asylum process in the United States. The authors establish a strong case for studying the work of IJs, particularly their decision making processes in asylum cases. In Chapter 2, the authors turn their focus to the database they have created. In itself, this dataset is a critical contribution to the discipline, especially since they have made their dataset publicly available. Although the links given in the book do not lead to the replication data, interested readers can find these data and the online appendices using a Google search for the first author’s Dataverse page.

The analyses in the book rely upon two key operational measures: the nature of relief granted the petitioner and the ideology of the individual IJs. The authors eschew the relief/no relief dichotomy in favor of a four-level ordinal variable: no relief, withholding of removal under the Convention Against Torture (CAT), withholding of removal (not under CAT), and a grant of asylum. However, the IJs generally do not have the ability to choose among this array of options, except in the rare case that the litigant applied for relief under all three grounds. I consider this a minor quibble, given the fact that these two “middle” options make up such a small fraction of the data. However, I take this fact as an indication that the judges are not free to choose. If they could, would not many more of the IJs choose one of these in-between categories of relief?

THE RIGHT’S FIRST AMENDMENT: THE POLITICS OF FREE SPEECH AND THE RETURN OF CONSERVATIVE LIBERTARIANISM

Vol. 26 No. 7 (November 2016) pp. 132-137

THE RIGHT’S FIRST AMENDMENT: THE POLITICS OF FREE SPEECH AND THE RETURN OF CONSERVATIVE LIBERTARIANISM, by Wayne Batchis. Stanford: Stanford University Press, 2016. 296 pp. Paper $29.95. ISBN: 978-0-8047-9801-6.

Reviewed by Ken I. Kersch, Department of Political Science, Boston College. Email: kersch@bc.edu.

After what now seems like a perversely protracted refusal by scholars, first, to take modern conservatism seriously as the subject of scholarly inquiry and, second, to attempt to apprehend and explicate it dispassionately on its own terms, rather than as a strawman for showcasing their own posturings and prejudices, there has emerged, in the last decade or so, an avalanche of excellent studies of American conservatism by a talented scholars from an array of academic disciplines, more than making up for lost time. Predictably, in constitutional law and history, one line of that scholarship began by whiggishly tracing contemporary conservative “originalism” backwards from seedtime to the reaping of Robert Bork, Raoul Berger, Edwin Meese, and Antonin Scalia. More sophisticated recent work – which now includes Wayne Batchis’s THE RIGHT’S FIRST AMENDMENT – allows for the possibility that, when looked at over the long term, none of what were once assumed to be defining dimensions of constitutional conservatism, whether a fidelity to “original meaning,” a skepticism about “rights talk,” or an insistence on “judicial restraint,” were either consistently practiced by conservatives, or even argued for: the movement was pluralistic, and constitutional conservatism’s core commitments as we know them today were contested and hard-fought.

Instead of starting with a presumption of what the conservative position would or should be, Batchis takes the straightforward but (oddly) unusual approach of simply asking what it is that self-identified conservatives said over time about the nature, implications, and scope of the First Amendment’s requirement that “Congress shall make no law … abridging the freedom of speech.” Creatively and appropriately – but, again, a bit unusually – Batchis undertakes his empirical examination in two spheres. The first surveys conservative constitutional argument in the public sphere, with special attention to arguments advanced in postwar conservatism’s flagship, crossroads journal, William F. Buckley Jr.’s NATIONAL REVIEW (“NR”) (founded in 1955). The second surveys and anatomizes conservative constitutional arguments by the U.S. Supreme Court’s conservative justices. Batchis asks an array of questions about the character and trajectory of free speech arguments in each of these spheres separately, and about the relationship between arguments in one sphere and those in the other. He finds variety, disagreement, nuance, and development. Batchis’s ultimate thesis is that, over time, the conservative movement, reacting to, reflecting upon, and strategizing in response to particular political controversies and intra-movement ideological trends (campus political correctness and free-market libertarianism, respectively), transformed itself into a strident advocate for, and defender of, latitudinarian understandings of the freedom of speech.

Batchis’s introductory chapter rightly emphasizes that there was no fixed relationship over the long term between what was understood in a particular epoch as “conservative” as a political ideology or disposition, and permissive or latitudinarian understandings of free speech. Adducing pioneering studies by Mark Graber, David Rabban, and others of Gilded Age “conservative libertarianism,” Batchis reminds us that many of that era’s rights-based individualists championed the freedom of speech alongside their better-known (“conservative”) defenses of contract and property rights (Batchis might have underlined, as well that many of the era’s pre-liberal progressives took the opposite position on both (Kersch 2004)). At the same time, before and after, “moralistic conservatives” consistently championed the vigorous exercise of state and local government [*133] police powers to promote public health, safety, and morals, including the aggressive regulation of speech that had a “bad tendency” (again, an approach they typically shared with their political/ideological opponents) (p. 2). Batchis’s focus, however, is on a slightly later conservatism still within in living memory: the more moralistic or virtue-centered conservative argument calling for active government policing of speech, as advanced, typically, by Christian conservatives (mainstream, evangelical, and Roman Catholic), key neoconservatives, and national security-minded Cold War anti-communists. Here, enlisting recent work by the political psychologist Jonathan Haidt (Haidt 2012), Batchis emphasizes the special conservative regard for, amongst other values, “loyalty,” “authority,” and “sanctity” (p. 9).

THE BURGER COURT AND THE RISE OF THE JUDICIAL RIGHT

Vol. 26 No. 7 (November 2016) pp. 129-131

THE BURGER COURT AND THE RISE OF THE JUDICIAL RIGHT, by Michael J. Graetz and Linda Greenhouse. New York: Simon & Schuster, 2016. 468 pp. Cloth $30.00. ISBN 978-1-4767-3250-3.

Reviewed by Calvin TerBeek, Department of Political Science, University of Chicago. Email: cterbeek@uchicago.edu

This is a good book aimed at multiple audiences. On one level it is directed at educated lay readers, it contains thumbnail sketches of the relevant justices, and includes a short primer on “Supreme Court procedure.” But the book also aims to make a novel argument about the Burger Court. Contrary to the conventional wisdom viewing the Burger Court as merely transitional (White 2007) or a “counter-revolution that wasn’t” (Blasi 1983), Graetz and Greenhouse argue that Warren Court precedents “were dramatically diminished in scope and impact” (p. 15) by the time Burger ceded the center seat to William Rehnquist in 1986. The implication is this: much of the work done by the undeniably conservative Rehnquist and Roberts Courts was simply extending decisions made by the Burger Court.

In order to support this claim, the book samples the Burger Court’s major decisions from the death penalty, criminal procedure, racial discrimination, affirmative action, abortion, gender discrimination, religion, speech (with a focus on commercial and corporate speech), to President Nixon’s travails vis-à-vis Watergate. While most of this will be old hat to legal academics and political scientists who study judicial politics, scholars and veteran Court watchers will find the fruits of Graetz and Greenhouse’s archival work rewarding. For example, Justice Powell’s papers show him wrestling with his self-admitted “confederate emotions” (p. 89) in the 1973 school segregation case KEYES V. SCHOOL DISTRICT NO. 1. And we learn of Justice Blackmun’s characterization of a brief penned by Ruth Bader Ginsburg as “mildly offensive and arrogant” (p. 166) while simultaneously admitting Ginsburg had the better of the argument. The book also admirably places the Burger Court’s decisions in the larger political and cultural climate rather than simply consisting of a rote review of opinions, concurrences, and dissents. It is also stocked with interesting, and telling, anecdotes such as Robert Bork’s op-ed response to REGENTS OF CALIFORNIA V. BAKKE (1978) – he accused the justices, among others, of being “hard-core racists of reverse discrimination” (p. 122) – and we are reminded the undue burden test so derided by conservatives was cribbed from Reagan Solicitor General Rex E. Lee’s brief by Justice Sandra O’Connor in AKRON V. AKRON CENTER FOR REPRODUCTIVE HEALTH (1983) (eventually finding its way into the joint opinion in CASEY (1992)). Finally, the book corrects the still too common perception that the “backlash” to ROE V. WADE (1973) was swift and certain (it wasn’t); indeed, here the book is at its best, telling a complex story deftly and drawing on political science, historiography, and Greenhouse’s previous work with Reva Siegel.

RECALIBRATING REFORM: THE LIMITS OF POLITICAL CHANGE

Vol. 26 No. 7 (November 2016) pp. 125-128

RECALIBRATING REFORM: THE LIMITS OF POLITICAL CHANGE, by Stuart Chinn. Cambridge: Cambridge University Press, 2014. 351 pp. Cloth/Paper $95.00. ISBN: 978-1-107-05753-1.

Reviewed by Miranda Yaver, Yale University. Email: miranda.yaver@yale.edu

Several decades of political science and legal scholarship has probed in various ways the forces shaping law and policy in the American separation of powers system, whether evaluating the congressional decisions of legislative design or the social forces shaping the rendering of legal judgments, to name just a couple of such strands of thought. These efforts have paved the way toward a deeper understanding of the ways in which inter-branch interactions shape the crafting of contemporary regulatory law and policy. Yet importantly, the modal analyses have emphasized the inputs of policy, largely (and sadly) to the exclusion of their ultimate implementation, a limitation that Stuart Chinn’s RECALIBRATING REFORM: THE LIMITS OF POLITICAL CHANGE crucially works to remedy.

Chinn raises important questions centered on the aftermath of legal reforms, and the dynamic processes that shape these reforms’ patterns and persistence. In doing so, he considers both the possibilities for major policy change and the limits on the reaches of those reforms. His study brings to light key oversights in the political science and legal literatures, which largely emphasize the initial disruptions and processes preceding policy changes, the details of whose precise formation and ultimate implementation we know far too little about. While some scholars (e.g., Hacker 2004) have sought to address the politics of retrenchment in recent decades, few have carried the policymaking story all the way through to understand the ultimate consequences of how policies are initially structured, how other institutions respond, and what policies emerge through those processes (however, see Patashnik 2008). This scarcity of scholarly attention leaves us unable to answer important questions such as to what extent, and under what conditions, institutions can carve out new rights in ways that will be more or less durable. Yet as Chinn notes, if Tocqueville was correct in viewing American law as being inherently conservative in nature, there is ample reason to suggest that attempted radical policy changes might in fact be tempered post-enactment (p. 5).

Of course, one prominent reason for this scarcity of scholarship is the sheer complexity of understanding properly the post-enactment processes that yield the substantive policy outcomes that we ultimately observe. Both the dynamic compositions of political preferences over time, as well as the institutional prerogatives of the branches for autonomy and influence, contribute toward potential disconnects between de jure law and the observable de facto policy. While interest groups may lobby persuasively and members of Congress may craft law with great ambition toward policy change, legal forces and a potential judicial predisposition toward stability may, as Chinn argues, limit the outer bounds of reforms as these policy changes are carried into effect. And given the challenges stemming from political uncertainty and the complexity inherent in American lawmaking, the relative inattention to these processes is indeed striking.