HOW POLICY SHAPES POLITICS: RIGHTS, COURTS, LITIGATION, AND THE STRUGGLE OVER INJURY COMPENSATION

Vol. 27 No. 9 (December 2017) pp. 147-149

HOW POLICY SHAPES POLITICS: RIGHTS, COURTS, LITIGATION, AND THE STRUGGLE OVER INJURY COMPENSATION, by Jeb Barnes and Thomas F. Burke. New York: Oxford University Press, 2015. pp. 272. Cloth $41.95. ISBN: 978-0-19-975611-7.

Reviewed by Herbert M. Kritzer, University of Minnesota Law School. Email: kritzer@umn.edu.

In HOW POLICY SHAPES POLITICS, Jeb Barnes and Thomas Burke extend work that one or the other, or both, have done on the politics surrounding disability, vaccine injury compensation, and asbestos litigation (Burke 2002, 1997; Barnes 2007, 2008, 2011; Barnes and Burke 2012). Their specific goal is to understand how the politics concerning a specific policy varies depending on whether the policy is structured around what Robert Kagan (1991, 2001) labeled adversarial legalism or bureaucratic legalism. That is, they want to “assess how the design of public policy—around courts and litigation on one hand, or through agency implementation on the other—shapes politics” (p. 2). They choose to focus specifically on policies dealing with injury compensation because that area “includes a vast array of policies of diverse design, some based on litigation, others on regulation and social insurance” (p. 4). Social security disability insurance (SSDI), the vaccine injury compensation (VIC) program, and compensation for asbestos-related injury (ARI) represent a range of program design that allows them to assess the impact of design on the politics surrounding specific choices in design.

To frame their analysis, Barnes and Burke advance one general hypothesis and several subsidiary hypotheses. The primary hypothesis is that selecting a litigation model over a bureaucratic model leads to the individualization of conflict and “generates a more divisive, fractious politics” (p. 5). More specifically, they consider “four serious charges against adversarial legalism: (1) it crowds out other forms of political action, especially lobbying for legislative change, (2) it is particularly ‘sticky’ and path-dependent, potentially locking governments into bad policies, (3) it creates polarizing backlashes, and (4) it individualizes interests, thus undermining social solidarity” (p. 15). To test these hypotheses, the authors conduct a general analysis of congressional hearings dealing with injury compensation and then report in-depth studies of the politics surrounding each of their three cases. The analysis of congressional hearing is contained in one chapter with in-depth analyses of the case studies, which each receive its own chapter. Based on their analyses across these four chapters, they find solid support only for the last of four “charges.”

Chapter 2 assesses whether congressional hearings differ depending on the type of legalism upon which an injury policy is based. Specifically, are there differences in the kinds of the witnesses and/or the diversity of witnesses testifying at hearings concerning the programs employing the two types of legalism and are there differences in the amount of conflict reflected in the hearings? For this analysis, the authors do not limit themselves to the three areas that are the focus of their case studies; rather they include all or most policy areas dealing with injury compensation. They group witnesses into five categories: business interests, claimants and their representatives, governmental officials, experts, and others. The analysis employs information on hearings covering a 40-year period starting in 1971. The authors apply a variety of methods and show that there are differences in the number and variety of witnesses. Moreover, they find more conflict at hearings involving programs operating in the style of adversarial legalism compared to hearings focused on programs operating employing bureaucratic legalism. These differences hold up across administrations and after introducing various control variables. It would have been helpful if the authors had included a table listing all the programs that formed the basis of the analysis along with how each was classified (bureaucratic or adversarial) [*148] and the number of hearings for each of programs.

Chapters 3, 4, and 5 are the case studies of the political debates surrounding the three systems for injury compensation programs. In each of these chapters, the authors trace the history of the political conflict surrounding the system under discussion. For SSDI and the VIC their discussions include debates over initiating the program and how politics have played out since the program began operating. SSDI is their example of bureaucratic legalism, ARI is the example of adversarial legalism, and the VIC is a system created to move from an adversarial system to a bureaucratic system. In the chapter on SSDI, the authors also provide a discussion of the Americans with Disabilities Act (ADA) as an additional contrasting case; although ADA is not an injury compensation program, it represents a very different approach to disability and creates some tension with SSDI. The discussions of SSDI and VIC start with the politics surrounding the programs’ creation, and then describe how the various interests interacted and the compromises that were needed to pass the legislation creating the programs. The analysis of those two programs proceeds to trace the issues that arose in efforts to expand each of the programs, to cutback the programs by changing who was covered, and to deal with other challenges that arose once the programs were in operation (e.g., the alleged link between thimerosal, at one time used as a preservative in some vaccines, and autism). The chapter on ARI traces both the unsuccessful efforts to fashion legislative reforms that would have created a more bureaucratic approach for those claiming ARI, and describes the development through the courts, particularly the bankruptcy courts, of bureaucratic-like programs in the forms of various trusts created to pay compensation. All three chapters draw on a combination or primary research and secondary sources, they are highly detailed, and directed at assessing the authors’ hypotheses; each chapter ends with an assessment of what the chapter’s analysis means for those hypotheses.

LIBERTY & UNION: THE CIVIL WAR ERA AND AMERICAN CONSTITUTIONALISM

Vol. 27 No. 9 (December 2017) pp. 144-146

LIBERTY & UNION: THE CIVIL WAR ERA AND AMERICAN CONSTITUTIONALISM, by Timothy S. Huebner. Lawrence, Kansas: The University Press of Kansas, 2016. 544pp. Cloth $34.95, ISBN: 978-0-7006-2269-6. Paper $26.95, ISBN: 978-0-7006-2486-7.

Reviewed by Stephen B. Presser, Northwestern Pritzker School of Law. E-mail: s-presser@law.northwestern.edu.

Let’s get the preliminaries out of the way. LIBERTY & UNION is one of the best one-volume histories of the Civil War era we are likely to get. It is beautifully and yet crisply written, it comprehensively covers events from before the Civil War’s beginning in 1861, and through Reconstruction until the controversial election of Rutherford Hayes in 1876. It is a remarkably objective analysis of politics and law during that period, and really, is three books rolled into one fairly tight 450-page package of text. These three books are (1) a narrative history of the Civil War years, complete with coverage of the major battles and generals, (2) an analysis of Constitutional theory as it developed before and after the War in both North and South, and (3) a discussion of the emergent political activity of African Americans as they contributed to the War, Reconstruction, Abolition and the beginnings of racial equality in this country. All three are splendid stories, splendidly told. If the book doesn’t garner much praise and many prizes I will be surprised, indeed. As an informative volume for beginners the book is without peer, and even for scholars deep into the arguments Huebner discusses, there is likely to be much on offer.

At first blush, it might appear that Huebner has, essentially, affirmed what now passes for politically correct conventional wisdom on the period – to wit, that Lincoln was a heroic martyr to the cause of freedom, and that the Radical Republicans who passed the Reconstruction Amendments and supervised military rule over a defeated South, were similarly heroic in their defense of the rights of African Americans. Huebner’s sympathies do often seem to lie with the Lincoln and the Radicals, and he appears to regard the abolition of slavery, and the crushing of the southern secession by force of arms to have amounted to a second American Revolution, and a noble one at that. But Huebner is too good a historian for his work to be characterized so simply. He quite sympathetically presents the arguments of the South, even the Southern slaveholders, and he builds a powerful case for the original 1787 Federal Constitution to have supported not only the ownership of human beings by others (this is pretty obvious even from the text of the document, though the word “slavery,” of course, is never mentioned), but also to have forbidden the centralizing actions, and the ignoring of the Civil Rights of Southerners and Lincoln critics, in which the Radical Republicans engaged.

Indeed, it is difficult, if not impossible, to come away from Huebner’s book and not understand that this “Revolution” of which he speaks was a profound alteration in the Constitution, not only by the Reconstruction Amendments, but by a Civil War and horrific carnage that might conceivably have been avoided. While he doesn’t dwell on it, I think Huebner raises the question whether the approximately 700,000 lives lost in the conflict were worth the cost, or whether slavery could have been ended by peaceful means, as it was in most of the other Western nations in which it existed. There seems to be a hint that Huebner believes only war could have ended the practice, but given the fact that even the Southerners were eventually prepared to emancipate their own slaves to draft the into the war effort, it does appear that there were things more important to the South than the preservation of their “peculiar institution,” as Southern defenders of the “lost cause,” were wont to argue following the war. Indeed, while Huebner appears to conclude that by the end of the War it was clearly about the abolition of slavery, when the war began, and after, there were plenty of Southerners who argued that actually it was about State sovereignty, the [*145] appropriate interpretation of the Declaration of Independence, and the limited nature of the Federal government under the Constitution.

There is no question that slavery was an evil that needed to be eradicated, and there is no question that Lincoln and the Republicans managed to do just that, and thus our custom of venerating them. There was a time, however, when the defenders of the South, Robert E. Lee in particular, were thought to be equally noble (though current events seem to suggest that era is fading, and fading fast). Huebner, then, in his intellectual honesty and his comprehensive coverage of what was said and written by partisans North and South, offers insight that renders the usual current analysis a bit too facile. Those of us fairly long in the tooth can remember late in the nineteen-fifties when the Radical Republicans were still regarded as fanatics, and when there was a belief that had Lincoln really wanted to, he could have let the Southern states secede. We could go further, and remember that while memories are now eroding, there was a time when in the middle states the conflict was referred to (as Huebner does) as a “Civil War” or the “War Between the States,” but there were those in New England, for example, who referred to it as “The Rebellion,” and those in the deep South who conceived of it as “The War of Northern Aggression,” and, in our post-modern age, we can understand that there was truth in each of these characterizations.

ACCIDENTAL ACTIVISTS: MARK PHARRIS, VIC HOLMES AND THEIR FIGHT FOR MARRIAGE EQUALITY IN TEXAS

Vol. 27 No. 9 (December 2017) pp. 141-143

ACCIDENTAL ACTIVISTS: MARK PHARRIS, VIC HOLMES AND THEIR FIGHT FOR MARRIAGE EQUALITY IN TEXAS, by David Collins. Denton, Texas: University of North Texas Press, 2017. 480pp. Hardcover $29.95. ISBN: 9781574416923.

Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College (MO). Email: tobias.gibson@westminster-mo.edu.

David Collins offers a spellbinding book on marriage equality. At its root, this is a great American love story. The author chronicles a love story of a former student and longtime friend. This book, not only tells the story of two men who fall in love, in Texas but also who decide to fight a legal battle for their right to wed. It is here that the book shines, and in a way that readers of the LAW AND POLITICS BOOK REVIEW may consider using the book for their classes including Judicial Process.

Layered within the book is an exceptionally well-told account of DELEON V. PERRY (2014) (and DELEON V. ABBOTT when Texas changed governors, the case that altered the history of one of the most conservative states, and impacted the more famous OBERGEFELL V. HODGES (2015) decision. A great portion of this book informs the reader about legal realities that students need to know, including the decision by one of Texas’s largest legal firms to argue the case pro bono; the strategic selection of codefendants; roles of amicus briefs; impact of oral arguments; impact of precedent; and venue selection.

An additional strength of this book is the how the personal impacts the legal, and the legal impacts the personal. Two examples suffice to make this point. First, in a great irony, Mr. Pharris was close friends with Greg Abbott, during their time as law students at Vanderbilt. Abbott went on to serve as Texas Attorney General and Governor, and in both capacities was a legal opponent of Pharris and Holmes. And, a long friendship was ended. Secondly, using posts from Mr. Pharris’s Facebook account and the comments that followed, Collins adds rich description to the personal elation and toil that a long time, contentious lawsuit can play on the parties to the case.
As to be expected when reading a book authored by one of the subject’s friends, the tone of the book is one-sided (more on this below). With that being said, there are two particular strengths of this book. First, there is a very informative discussion about the history of the struggle for legal recognition of gay marriage. Second, the legal discussions of the DELEON case that Pharris and Holmes were codefendants of are clear, informative, and interesting.

I will admit to my ignorance of much of the rich history of the struggle for gay marriage rights in the United States. Collins ably walks the reader through the foundations of the issue (pp. 72-87), discussing BAKER V. NELSON (1972), a case dismissed by the U.S. Supreme Court for lack its perceived non-justiciability, in which Jack Baker and Mike McConnell sued for the right to marry in Minnesota. Though the case failed, they were able to marry in a neighboring county, and inspired a movement. Several gay couples tried to marry in states including Texas, Colorado and Hawai’i. In the Colorado case, Richard Adams and Anthony Sullivan, an Australian native, were denied marriage rights by the Immigration and Naturalization Service. The message from INS is heart wrenching, because the rights of these men were denied. According to the official letter from INS, Adams and Sullivan “failed to establish that a bona fide marital relationship can exist between two faggots” (p. 73).

VACCINE COURT: THE LAW AND POLITICS OF INJURY

Vol. 27 No. 9 (December 2017) pp. 137-140

VACCINE COURT: THE LAW AND POLITICS OF INJURY, by Anna Kirkland. New York: New York University Press, 2016. 288pp. Cloth $40.00. ISBN: 978-1-4798-7693-8.

Reviewed by Paul Nolette, Department of Political Science, Marquette University. Email: paul.nolette@marquette.edu.

Anna Kirkland’s new book examines a relatively little-known yet fascinating specialized court lodged within the United States Court of Federal Claims. The Office of Special Masters – most frequently referred to as the “vaccine court” – was established by the National Childhood Vaccine Injury Act of 1986. This act was a response to a flood of product liability lawsuits that threatened to drive drug companies out of vaccine manufacturing, thereby complicating mandatory vaccination programs across the country. As they have in other areas, such as with the September 11 Victim Compensation Fund, Congress created a system to compensate those who had suffered certain specialized injuries. The vaccine court has served as the mandated first stop for those making vaccine-injury related claims, as the system funnels such cases away from the regular court system and towards this specialized court.

The central actor in Kirkland’s study is itself a worthy object of attention as one of a growing number of specialized courts in the American judicial landscape (Baum 2011). In Kirkland’s hands, however, the work is not simply a study of the operations of an obscure but nevertheless significant judicial body. It is also a study of how law and social movements interact in legal contests aiming to resolve competing claims drawn from scientific expertise and popular beliefs. Drawing from a wealth of public documents and debates related to the vaccine court, Kirkland illuminates the court’s role in creating knowledge about vaccine injuries through the resolution of individualized cases. Her approach operates within the tradition of law and society, and builds off Martin Shapiro’s classic insights about courts’ role in upholding the social order (Shapiro 1981).

Throughout the book, Kirkland provides a thorough analysis of the workings of the vaccine court. As she describes in Chapter 2, the court operates differently than the typical tort process. For one, the court operates under its own procedural rules rather than the Federal Rules of Civil Procedure. Vaccine court cases are not subject to the stricter evidentiary standards that the Supreme Court required of federal civil lawsuits in DAUBERT V. MERRELL DOW PHARMACEUTICALS (1993); instead, special masters are tasked to consider “all relevant and reliable evidence governed by principles of fundamental fairness to both parties” (p. 121). The vaccine court is also unusual in that the attorneys for losing litigants routinely get their court costs paid, thereby providing additional incentives for attorneys to represent claimants.

The vaccine court also began by operating more bureaucratically, in contrast to the adversarial nature of tort litigation. The court initially resolved most cases with reference to a generous Vaccine Injury Table providing fast-tracked compensation for officially recognized injuries caused by vaccines. This system operated bureaucratically because claimants did not need to demonstrate that vaccines definitively caused their injuries but merely that their injuries might have been caused by vaccines. This sidestepped the central debate over vaccine harms, which Kirkland suggests was consonant with the lack of scientific consensus over vaccine injuries at the time of the court’s creation. However, when in the 1990s the scientific consensus shifted towards rejection of links between vaccines and injuries, the court shifted along with it. Fewer injuries were compensated through the fast-track Vaccine Injury Table and more claims became “off-table” claims contested in an adversarial manner.

VALUE CHANGE IN THE SUPREME COURT OF CANADA

Vol. 27 No. 8 (October 2017) pp. 133-136

VALUE CHANGE IN THE SUPREME COURT OF CANADA, by Matthew E. Wetstein and C.L. Ostberg. Toronto: University of Toronto Press, 2017. 337 pp. $75.00. ISBN 978-4875-0139-6.

Reviewed by Susan W. Johnson, Department of Political Science, University of North Carolina at Greensboro. Email: swjohnso@uncg.edu.

What values do Canadians embrace and how do these values translate into policy choices and development of the law? VALUE CHANGE IN THE SUPREME COURT OF CANADA, to be certain, is a book about how legal outcomes are affected by justice ideology, interest group activity, and shifts in societal ideals and values in Canada. However, do not let the emphasis on Canada dissuade U.S. and other public law scholars from examining the book. There is something here for everyone, and public law scholars of all backgrounds will benefit from considering the theoretical explanation of value change in courts over time as a function of both judicial attitudes and societal shifts.

Interest in value change reflected through court decisions has grown dramatically in recent years. Unfortunately, most of the empirical research has been limited to U.S. courts. Matthew Wetstein and C.L. Ostberg’s new book provides an alternative to the near exclusive U.S. focus by examining the interactions of value change in Canadian society with Supreme Court decision- making to understand case outcomes as a function of both. The authors begin by introducing a value change theory, which explains why courts may move in the direction of postmaterialist values over time. Relying on Ronald Inglehart’s (1971, 1977, 1997; Inglehart, Nevitte, and Basanez 1996; Inglehart and Welzel 2005) theory of postmaterialist value change, Wetstein and Ostberg argue that value changes shift from materialist to postmaterialist in advanced industrialized countries, especially in the period after World War II, as society meets basic individual needs. In particular, Wetstein and Ostberg investigate why Canadian Supreme Court justices’ decisions change over time, and whether societal changes correspond with changes by each court from 1970-2010. Utilizing sound and testable hypotheses with data and methodology that is rigorous and verifiable, the authors provide multifaceted and useful evidence to test Inglehart’s value shift theory as it applies to elite actors. The authors succeed in teasing out factors that influence changes in key issue areas over time and persuasively argue that legal developments do not occur in a vacuum; rather, elite behavior depends on external pressures and actors in addition to justices’ attributes and attitudes.

To test Inglehart’s theory in the context of the Supreme Court of Canada, the authors blend two research strategies. First, they provide empirical evidence of the influence of justice specific and case specific factors on justice votes in cases where one would expect values to shift from materialist to postmaterialist. These cases include environmental protection, free speech, and discrimination. The authors assess case outcomes, opinion authorship patterns, intervener activity, and justice ideology with causal models to evaluate the relative impact of these factors on case outcomes at various points in time. Second, the authors use [*134] contextual analysis of key landmark cases in each issue area to determine the evolving language justices use to describe values.

The authors present empirical evidence first for each issue area. Then, in subsequent chapters for each issue type, the authors provide contextual analysis of significant decisions during the Laskin, Dickson, Lamer and McLachlin courts. The evidence presented in the quantitative chapters is convincing. The analyses consisted of justice specific variables such as gender, region, ideology and court era as well as case specific variables such as primary issue raised, type and number of interveners, and whether the case raised a federal, provincial or CHARTER OF RIGHTS issue. The case specific variables differed somewhat in each of the three quantitative chapters to reflect obvious differences by issue type.

IDEOLOGY IN THE SUPREME COURT

Vol. 27 No. 8 (October 2017) pp. 131-132

IDEOLOGY IN THE SUPREME COURT, by Lawrence Baum. Princeton, NJ: Princeton University Press, 2017. 261pp. Hardcover $35.00. ISBN: 978-0691175522.

Reviewed by Thomas G. Hansford, University of California, Merced. Email: thansford@ucmerced.edu.

To say that the influence of the justices’ ideological leanings on the Supreme Court’s decisions is well documented is to risk understatement. In fact, the connection between ideology and behavior on the Court is so established that its status has changed from the subject of empirical examination to that of being a central assumption undergirding almost all theorizing about the Court. How, though, does a justice’s ideological position translate into a preferred position in a Court case? What makes a position in a given legal issue area liberal or conservative? Has the mapping of issue positions onto the canonical left-right ideological dimension remained consistent at the Court over time? These are the types of question that motivate Lawrence Baum’s excellent and provocative new book, IDEOLOGY IN THE SUPREME COURT.

Baum shows that across several key issue areas, the apparent definitions of liberal and conservative outcomes have changed over the past several decades. For example, he demonstrates that while pro-freedom of expression votes were cast by liberal justices from the 1950s through 1980s, by the mid-1990s this type of vote was increasingly being cast by the more conservative justices. Using Baum’s language, the “polarity” of this issue area has switched. Other issue areas, including criminal justice and Takings Clause cases, are also shown to have experienced changes in ideological polarity during the Twentieth Century. These convincing results alone are important reminders that judicial scholars need to continue updating their understandings of the connection between ideology and specific issue positions.

Baum, however, also seeks to understand why these changes occur and what this tells us about the true content of judicial ideology. He argues that these shifts in polarity can occur when there are changes in the identities of the groups who are helped or hurt by the abstract legal principle in question. To return to the freedom of expression example, liberal justices prefer the expression of liberal positions. Thus when claimants from groups that are sympathetically viewed by liberals came forward in the 1940s through 1970s, the liberal justices were the ones casting pro-expression votes. When conservative speakers and corporations began to press free expression claims in subsequent decades, liberal justices retreated from their pro-expression positions, only to be replaced by conservative justices.

From this type of pattern, Baum concludes that the ideological polarity of an issue area is not entirely based on constrained, first-principles reasoning. Instead, polarity seems to sometimes be driven by affect towards the groups hurt or helped by an issue position. Interestingly, this would place the justices in Converse’s (1964) third “level of conceptualization,” in which people do not hold abstract ideological positions but instead think in terms of how policies impact groups. If Baum is right, then this is a remarkable and sobering [*132] assessment of the justices’ belief systems. It also suggests that the justices often do not have sincere ideologically-motivated preferences over abstract legal rules. Legal rules are mere instruments by which to assist groups that are favored and impair groups that are not.

PERMANENT STATE OF EMERGENCY: UNCHECKED EXECUTIVE POWER AND THE DEMISE OF THE RULE OF LAW

Vol. 27 No. 8 (October 2017) pp. 126-130

PERMANENT STATE OF EMERGENCY: UNCHECKED EXECUTIVE POWER AND THE DEMISE OF THE RULE OF LAW, by Ryan Alford. Montreal: McGill-Queen’s University Press, 2017. 333pp. Cloth $34.95. CAD. ISBN: 978-0-77-354919-7.

Reviewed by Daniel N. Hoffman, Professor Emeritus, Johnson C. Smith University. Email: guayiya@bellsouth.net.


This book, by Canadian law professor Ryan Alford, adds to a growing body of literature about the weakening of traditional legal and institutional checks that once hemmed in the U.S. executive branch. The study is especially distinctive in its focus on a conception of the rule of law drawn from international materials.

The preface states, with disapproval, that “there is now a bipartisan consensus on the desirability of an elective dictatorship over foreign affairs and national security” (p. xiii). It concludes, “a country that has exited from constitutional governance is no longer self-correcting. If the rule of law is to be restored in the United States, this will likely require significant efforts by the international community …” (p. xiv).

The introductory chapter begins with assessments by UN Special Rapporteur Philip Alston, Amnesty International and Human Rights Watch of US responses to the 9/11 attack: they agree that measures such as drone killings, torture, and indefinite detention violate international humanitarian law. Alford argues that neither the Obama administration, the courts, or Congress provided effective legal remedies. Instead, the courts and Congress implicitly accepted increasingly bold claims of plenary executive power. The rule of law principles effective prior to 9/11 have been abandoned, and the other branches can no longer effectively oversee executive action.

Chapter 1 explores the minimum requirements of the rule of law, a concept that is traced back to British history and the struggle against absolute monarchy. Alford relies on Dicey’s definition of the rule of law, which is defined as the absence of prerogative and arbitrary power, equality before the law, and duty of officials to obey the laws. The UN has endorsed this concept, with the added proviso that accountability must be “consistent with international human rights norms and standards” (p. 17). Despite intense jurisprudential debate over which substantive rights are protected, the core principle of legality—rules of general application and neutral adjudication—is not controversial. The International Commission of Jurists has emphasized the importance of careful legislative delineation of executive powers and oversight of their exercise, as well as review and remediation by an independent judiciary. The author notes that, “This jurisdiction must extend to every possible claim of infringement of non-derogable human rights (Non-derogable rights are rights recognized under international law that a nation cannot violate under any circumstances (p. 17).) by the executive, and includes the power to determine whether evidence sought from the government by the plaintiff can be properly withheld in the interest of state security.” (p. 26). The recent growth of executive powers rejects the core principles of the rule of law and subverts the US Constitution. [*127]

THE SUPREME COURT: THE JUDGES, THE DECISIONS, THE RIFTS AND THE RIVALRIES THAT HAVE SHAPED IRELAND

Vol. 27 No. 8 (October 2017) pp. 122-125

THE SUPREME COURT: THE JUDGES, THE DECISIONS, THE RIFTS AND THE RIVALRIES THAT HAVE SHAPED IRELAND, by Ruadhán Mac Cormaic. United Kingdom Penguin Ireland, 2016. 456pp. $45.00.ISBN: 978-1-844-88340-0.

Reviewed by Richard S. Price, Department of Political Science & Philosophy, Weber State University. Email: richardprice@weber.edu.

In 1999, I became fascinated with learning more about the U.S. Supreme Court after an introductory class discussion. I quickly discovered THE BRETHERN by Bob Woodward and Scott Armstrong (1979). I devoured the journalistic expose on the Court and was hooked thereafter. I suspect this is a common story for readers of these reviews and when I came across a blurb about Ruadhán Mac Cormaic’s THE SUPREME COURT, I saw a similar opportunity to expand my horizons. Cormaic provides a journalistic exploration of the Supreme Court of Ireland from 1922-present. As with Woodward and Armstrong’s classic, Cormaic provides an engrossing look at a foreign court that offers great details for academics. I will highlight three areas law and courts scholars may find particularly interesting, both as useful teaching material and as research fodder.

First, Cormaic illustrates nicely the classic academic argument over whether judges are driven by legal or policy considerations (Gillman 2001; Segal and Spaeth 2002). He presents Irish jurists as existing along a continuum from theorists to the pragmatists. Theorists are described as embracing Montesquieu’s automatons theory: “judges … are only the mouth that pronounces the words of the law, inanimate beings, who can moderate neither its force nor its rigor” (p. 11), where pragmatists “are more result-oriented: they will the just outcome and then search for a legally permissible way to bring it about” (p. 11). The most intriguing exploration of decision-making, especially with an eye to classroom engagement, is the battle over unenumerated rights. The Irish Supreme Court first embraced the concept in RYAN V. ATTORNEY GENERAL (1965), where it accepted the idea of a right to bodily integrity while rejecting a challenge to water fluoridation (pp. 84-90). The application of this doctrine, similar to the American experience, received its most controversial exploration in matters of sex, contraception, and abortion. After giving birth to four children, May McGee’s physician strongly warned her against any further pregnancies because of her serious health problems. Ireland prohibited the sale, advertising, or importation of contraceptives and none were made within the Republic. The story of her trial would make a profound companion study with GRISWOLD V. CONNECTICUT (1966). For example, the State suggested that the McGee’s could simply live as brother and sister and when asked how her husband, Séamus, would feel to see May using contraceptives he responded “I’d prefer to see her use contraceptives than be placing flowers on her grave” (p. 163). The State strongly resisted the implication that the Constitution should change based on current opinion: “If this is an objectionable piece of legislation, the way to get rid of it was not by approach to the Courts but by having the Act repealed” (p. 164). When the Irish Supreme Court invalidated the law, it did so [*123] in part based on a marital privacy rationale similar to GRISWOLD but strengthened by the recognition of the family as a central component of Irish society in Article 41 of the Irish Constitution (170-72). Justice Brian Walsh particularly embraced this rationale, in part, Cormaic suggests, because he was aware of the connection between GRISWOLD and ROE V. WADE (1973) and wanted to cut off any future litigation towards abortion rights (p. 174). Pro-life activists, in Ireland, saw the same risks and successfully advocated for a constitutional amendment, adopted as the Eight Amendment in 1983 by 66.9%, recognizing the “right to life of the unborn” (Art.40.3.3o). This did not stop litigation over the issue. Most famously, the X case involved a fourteen-year-old rape victim who sought to travel to England to obtain an abortion, the common way around Ireland’s restrictive law. The Attorney General instructed his office to seek an injunction, a decision Cormaic shows to have puzzled his government colleagues (p. 286). The Supreme Court ultimately lifted the injunction holding that the girl’s suicidal feelings presented a risk to her life overcoming the constitutional restriction. While momentous, the X decision demonstrated the incoherence of abortion law in Ireland, which the country is still struggling to deal with (pp. 284-98). The 1983 challenge to Ireland’s sodomy law provides another parallel to American unenumerated rights experience. The Irish Court upheld the law by drawing on “vague and largely unexplained natural law concepts and the Christian tradition to denounce homosexuality as a suggestible condition that was immoral and wrong” (p. 207). This brief description does not do justice to the complex narrative that Cormaic weaves but it should be sufficient to show the teaching opportunities inherent in his book as well as a nice comparative example of courts and social change research.

Second, Cormaic explores the institutional development of the Irish Court in ways that scholars of the rise of judicial power in the U.S. would find intriguing (Crowe 2012; Whittington 2007). While the Irish Constitution granted the courts judicial review, judges trained under a British tradition were loath to exercise the power. Cormaic uses language that scholars of political development have long been familiar with: “judicial innovation works by accretion, like a building that takes shape with the addition of each new block” (p. 58). In the 1940s, the Irish Court sought to protect itself from political intrusion when it invalidated a 1947 law that sought to require the dismissal of all actions related to a dispute over a political party’s funds (pp. 62-67). Cormaic details the ways in which a new generation of justices built upon this foundation to strengthen the courts, in part by expanding its protection of fundamental rights as evident in the story about May McGee and the right to privacy. Decades later, Walsh recounted how, when he was appointed, the Taoiseach expressed a desire for a more American style Supreme Court (p. 78) and in some ways the activism of the Irish Court in the 1960s and ‘70s paralleled the Warren Court experience touching on a variety of issues from criminal procedure to the rights of prisoners held for extradition to the United Kingdom. In other ways, though, the institutional power of the Irish Court went further than its American counterpart in 1986-87 when it fundamentally altered Ireland’s treaty power. In December 1986, Ireland was set to ratify the Single European Act when the High Court enjoined ratification days before the January 1st deadline. On appeal the Irish Supreme Court sustained the injunction, reasoning that a significant transfer of control of foreign [*124] policy must be submitted to the people in a referendum. “Since 1987 every European treaty has been put to a referendum, and two … have been defeated before being approved at the second attempt” (p. 262). This not only altered popular expectations about referenda, but the Court also forbade the Government from using public money to campaign for a referendum result (pp. 251-68). This is not to say that the Court never faced challenges. In 2011, 80% of voters supported removing the constitutional prohibition on reducing judicial salaries concluding a controversy of the Great Recession public funding crisis (p. 380). Cormaic’s story illustrates a Court that evolved from a deferential British approach to judicial power to an independent actor of political importance.