GLASS AND GAVEL: THE U.S. SUPREME COURT AND ALCOHOL

Vol. 29 No. 5 (May 2019) pp. 57-58

GLASS AND GAVEL: THE U.S. SUPREME COURT AND ALCOHOL, by Nancy Maveety. Lanham, Maryland: Rowman & Littlefield, 2019. 367pp. Hardcover $35.00. ISBN:  9781538111987.

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

When I first learned that Nancy Maveety was publishing a book about two topics near and dear to several of my vital organs – brain, heart, and liver (in no particular order) – I took two immediate and swift actions. First, I went on Amazon and preordered the book. Second, I volunteered to review the book for this publication. This was, quite frankly, to ensure that I had an “excuse” to read the book, and the book lived up to my high expectations. Although its title and cover art might lead one to believe otherwise, GLASS AND GAVEL represents a serious – yet still accessible – scholarly effort on the part of Maveety to unite several heretofore disparate strands of work. At roughly 300 pages of main text augmented with another 45 pages of endnotes, the book is a substantial piece of serious scholarship. GLASS AND GAVEL (and I promise this will be the only drink-related pun I subject you to) is equal parts legal anthology and social/cultural history with just a few – but nearly enough for this reviewer’s tastes – dashes of judicial biography. More on that later. As such, if you are in the market for either a comprehensive accounting of the Court’s alcohol-related jurisprudence or a smart and concise synthesis of the socio-cultural history of alcohol, this book is a must-read.

Maveety begins GLASS AND GAVEL by making a persuasive case for why one ought to take seriously the endeavor on which she is about to embark. Like much of the studies we pursue, part of her efforts are motivated by a gap in the literature, and this is an important oversight. As Maveerty writes of the relationship between America and alcohol, “Yet only fuzzily remembered or documented within that troubled romance is the entity of the U.S. Supreme Court. This is as grave an omission as the olive from the martini, for the court and its justices have been caught with glass as well as gavel in hand. Less flippantly put, the U.S. Supreme Court has regularly and frequently been at the center of the tricornered relationship between drinking, public life, and constitutional law and liberties” (p. 3). The structure of the book makes clear the extent of this regularity and frequency that Maveety references. GLASS AND GAVEL consists of 14 numbered chapters, each corresponding to the tenure of a Chief Justice. (Maveety condenses the Jay, Rutledge, and Ellsworth years into a prologue as the Court had not issued any alcohol-related opinions during these early years.) Not only is GLASS AND GAVEL impressive in its breadth – indeed, it covers 225+ years of American history – but it is equally noteworthy in depth of what Maveety skillfully covers within each chapter.

Each chapter provides readers with a brief account of drinking practices among the justices (with a particular focus on the Chief) on the Court during that period. Similarly, Maveety provides a thoughtful summary of alcohol use in political culture (e.g., the President) as well as society more broadly. The inclusion of this information came as a pleasant and very welcomed surprise to me. Maveety has canvassed and synthesized a wide array of lengthy studies on the topic (e.g., Daniel Okrent’s 500-page tome). The result is a number of great gems of trivia that I found myself flagging for future reference. For example, I learned that it was the large number of prohibition-related cases that gave birth to plea bargaining, which has, of course, evolved into an essential element of the criminal justice system. Third, each chapter of GLASS AND GAVEL provides a thorough description of all alcohol-related cases decided by the Court during the period – of which there are a surprisingly large number. As if all of this was not enough, Maveety also identifies a cocktail that she contends is most representative of each period. [*58]

JUDICIAL REVIEW AND CONTEMPORARY DEMOCRATIC THEORY: POWER, DOMINATION, AND THE COURTS

Vol. 29 No. 5 (May 2019) pp. 53-56

JUDICIAL REVIEW AND CONTEMPORARY DEMOCRATIC THEORY: POWER, DOMINATION, AND THE COURTS, by Scott E. Lemieux and David J. Watkins. New York: Routledge, 2017. 183 pp. Cloth $24.95. ISBN 978-1-138-09521-2.

Reviewed by Jesse Merriam, Department of Political Science, Loyola University Maryland. Email: jrmerriam@loyola.edu.

With JUDICIAL REVIEW AND CONTEMPORARY DEMOCRATIC THEORY: POWER, DOMINATION AND THE COURTS, Scott Lemieux and David Watkins have written a thoughtful and engaging book that is ultimately disappointing in failing to engage the political realities of 21st century America. Before explaining what is valuable about the book, and why it is nonetheless disappointing, I will contextualize the shifting debate over judicial review and where it is currently situated in the world of judicial politics, as this background is critical to the book’s place in legal discourse.

In the first half of the 20th century, progressives criticized robust judicial review as a threat to democratic governance, whereas conservatives defended judicial intervention as a constitutionally proper means of modulating popular impulses. During this period, the American Left-Right division, particularly as applied to judicial politics and constitutional law, was defined largely according to economic issues. Thus, cases involving contractual liberties, such as LOCHNER V. NEW YORK, were important in framing how conservatives and progressives thought about judicial review.

In the second half of the 20th century, however, there was a sharp transition in the relationship between judicial review and political ideology as America’s political divisions became more focused on social, cultural, and ethnic matters. Whereas the Old Left rejected robust judicial review (because the Old Left sought to protect large segments of the population from economic exploitation at the hands of the elite few), the New Left embraced judicial review in seeking to protect various minority groups from majority oppression. As the Warren Court advanced the New Left’s agenda on issues such as desegregation, school prayer, and criminal justice, conservatives began condemning the Supreme Court’s use of judicial power as “judicial activism” and a threat to majoritarian rule.

Over the last 75 years, left-leaning scholars, politicians, and judges have generally maintained this favorable position toward judicial review, but the American Right has transitioned on this issue, as many right-leaning legal scholars have recently embraced what they call “judicial engagement” – i.e., an aggressive use of judicial review in effectuating the Constitution’s original public meaning. Just as the American Left came to embrace judicial review for political purposes, the American Right’s renewed commitment to judicial review has coincided with the Republican Party’s control of the Supreme Court and the rise of the Federalist Society.

STATE CONSTITUTIONAL POLITICS: GOVERNING BY AMENDMENT IN THE AMERICAN STATES

Vol. 29 No. 5 (May 2019) pp. 50-52

STATE CONSTITUTIONAL POLITICS: GOVERNING BY AMENDMENT IN THE AMERICAN STATES, by John Dinan. Chicago, IL: The University of Chicago Press, 2018. 396 pp. Paper $35.00. ISBN: 9780226532813.



Reviewed by Staci L. Beavers, Department of Political Science, California State University San Marcos. Email: sbeavers@csusm.edu. 

John Dinan’s STATE CONSTITUTIONAL POLITICS: GOVERNING BY AMENDMENT IN THE AMERICAN STATES provides a sweeping overview of the landscape of state constitutional revision through the amendment processes available to all 50 states. Spanning U.S. history and encompassing a wide breadth of institutional and policy areas, Dinan “categorize[s] and catalog[s] the ways amendments have served as instruments of governance throughout American history” (p. 3).

Dinan’s work as a political scientist in the realm of state constitutional development is already extensive and well-known. In addition to numerous law review articles in the subfield, an earlier book published in 2006 provided a comprehensive examination of “more than 230 state constitutional conventions held since 1776” (p. 7). In STATE CONSTITUTIONAL POLITICS, Dinan now provides updates on formal state constitutional changes for the annual THE BOOK OF THE STATES. With this book, Dinan tackles a host of state-level constitutional amendments across generations.

Chapter 1 sets the stage with an overview of the both the mechanisms available for formally amending state constitutions and the rate at which the states do so. Chapter 8 closes the volume with Dinan’s final assessment of the effects of pursuing amendments as the method of choice for seeking policy or institutional changes rather than legislative statutes or judicial rulings.

Chapters 2-7 provide Dinan’s cataloging of an array of constitutional changes from the Founding era to the present. The amendments included range from “institutional authority amendments” that typically shift legislative powers to other bodies (Chapter 2) to amendments that revise the status of various rights (Chapter 3) to those that attempt to counter or stave off judicial rulings (Chapter 4). Later chapters discuss amendments that proscribe and authorize various powers, particularly in the realm of taxing and spending (Chapters 5 and 6, respectively), while Chapter 7 covers amendments that establish policies outright (Chapter 7). Although the reader could quibble with Dinan’s classification scheme, his organizational criteria are clear and hold together.

WHAT JUSTICES WANT: GOALS AND PERSONALITY ON THE U.S. SUPREME COURT

Vol. 29 No. 4 (April 2019) pp. 46-49

WHAT JUSTICES WANT: GOALS AND PERSONALITY ON THE U.S. SUPREME COURT, by Matthew E.K. Hall. New York, Cambridge University Press, 2018. 224 pp. Cloth $24.99. ISBN: 9781108462907.

Reviewed by Eileen Braman, Department of Political Science, Indiana University Bloomington. Email: ebraman@indiana.edu.

Matthew E.K. Hall’s new book, WHAT JUSTICES WANT: GOALS AND PERSONALITY ON THE U.S. SUPREME COURT, is major step forward in looking at judicial behavior in a creative and interesting way. It covers many of the topics law and courts scholars care about using innovative methods that allow us to study the effects of personality traits on the behavior of Supreme Court justices. This notable achievement should attract the attention of judicial scholars and students of political psychology alike.

Given the myriad of difficulties of ascertaining the traits of political elites “at a distance,” the study of personality went out of fashion in political science until the 1980s when psychologists discovered they could reliably measure traits and their behavioral correlates through mass survey techniques. Hall looks at five traits: Agreeableness, Conscientiousness, Extroversion, Neuroticism, and Openness to Experience. These are, in theory, universal – that is, each trait is thought to exist in each person to some degree. They have been the subject of many psychological studies, offering a new window for political researchers to systematically assess the impact of personality of elite decision makers. In taking advantage of the linguistic software that is now available to measure traits, Hall is the first to investigate how aspects of personality influence behavior in the institution at the pinnacle of our judicial system.

Moreover, his approach is one of the first to take the “collegial” nature of collegial appellate court decision making seriously, on its own terms. When appellate court judges make decisions, they do so as a group rather than individually. The normative justifications for doing so vary. Group decision making can reduce bias, increase accuracy, and bring the representation of different points of view to judicial outputs. Group decision making also has important behavioral implications. To date judicial scholars have largely talked about the group decision in terms of social incentives, like collegiality, but there are others the group context raises. As it seems so integral to his approach, I think Hall could have addressed the research on group decision making a bit more fully. For example, there are really two distinct fields of psychological research on groups. One involves social influence – or the effect groups have on individual cognitive processes – while the other looks at group decision making in and of itself. From social influence research, we know that making decisions in the presence of others can have two contradictory effects. It can either cause “social loafing,” where decision makers employ less effort on a common task, assuming others will pick up the slack, or it can cause “social facilitation,” where the mere presence of others engaged in similar work makes individuals work harder. Psychologists have not been particularly good at figuring out when one versus the other phenomenon will occur. One individual difference that could explain these differing tendencies is the level of conscientiousness of the particular individuals in the group. A few of Hall’s hypotheses ultimately get at this, but if he had explicitly worked in some of our knowledge about social influence theory, it would have made for a much “richer” explanation. There are also findings in the group decision domain regarding polarization versus moderation of views in mixed groups. Again, sometimes the views of individual decision makers become more extreme, but other times they tend to moderate to accommodate the views of others in the group – and psychologists have had trouble saying which phenomenon will happen when. Often the different processes are explained by group composition, but such explanations are not always on target. It seems that the presence of [*47] individuals with more and less agreeableness might just as likely determine which process will prevail.

Other observations about the book fall into three broad categories concerning (1) Hall’s measures and data, (2) his conceptualization of goals related to specific personality traits, and (3) the conceptualization of what institutional behaviors should follow from those goals. Hall presents Supreme Court Individual Personality Estimates (SCIPE) scores of 34 justices on the Court from 1946 to 2015. From the graphic presentation of scores on each of the five personality dimensions, it looks like there is not much variation between justices on any of the “Big 5” traits. I would like to know where the justices’ scores fall in relation to the general populations for which we similar have data. It makes a lot of sense that the justices’ sores on these personality measures would be quite consistent because of self-selection and institutional selection processes (a Supreme Court justice is likely to be an attractive job for people with very similar traits; it is further reasonable that those who are successful enough to be appointed to the Court would have similar traits). Obviously, comparisons are about the justices’ behavior in relation to one another – and that is appropriate. However, I wonder how much research concerning high versus low levels of contentiousness really translates when we are talking about professionals who are probably much more similar than different when put in broader perspective. Even some of the relative comparisons are unexpected. For instance, given Hall’s rather lengthy discussion of the willingness of Justices Douglas and Black to accept privacy arguments in GRISWOLD V. CONNECTICUT in the book’s first chapter, I expected them to be very different on conscientiousness and/or openness to experience – in fact, it looks like their scores are not distinguishable on either dimension.

THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION

Vol. 29 No. 4 (April 2019) pp. 43-45

THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION, by Richard L. Hasen. Yale University Press, 2018. 226pp. Hardcover $30.00 ISBN: 978-0-300-22864-9.

Reviewed by Christopher N. Krewson, Department of Politics & Government, Claremont Graduate University. Email: christopher.krewson@cgu.edu.

What is the legacy of the late Justice Antonin Scalia? According to Richard L. Hasen, many on the ideological right consider him “a rare principled Supreme Court justice who established and applied neutral principles to the most difficult cases.” To others on the left, he was “a justice who let his political, religious, and social conservatism drive him to results-oriented decisions” (p. ix). In his excellent book, THE JUSTICE OF CONTRADICTIONS, Hasen shows why Scalia may be remembered as a disrupter who employed a misleading and inconsistent approach to judicial decision making. Hasen’s primary thesis consists of two parts. First, he argues that Justice Scalia’s emphasis on neutral methods of interpretation masked what was mostly a results-oriented approach to judicial decision-making. Secondly, he contends that Scalia’s caustic behavior and opinion writing were counter-productive because they undermined his ability to enhance the legitimacy of judicial decision-making.

As explained in its preface, the book is not intended to be a biography of Justice Scalia; rather, it considers Scalia’s judicial tenure using a holistic and thematic approach. The purpose of the project is to give “a view from this point in time of [Justice Scalia’s] likely legacy.” In particular, the book explores “Scalia’s fundamental contradictions through an examination of his jurisprudential theories of textualism and originalism, his inimitable and often caustic tone in dealing with his adversaries both on and off the Court, and his jurisprudence in key areas of modern American Law” (pp. xi-xii). The portrayal of Justice Scalia is clearly a snapshot in time and to claim an understanding of his legacy at this point seems a fraught endeavor. Nevertheless, Hasen does a commendable job introducing the reader to the complexity and nuances of Antonin Scalia.

Hasen’s primary claim is that Justice Scalia acted inconsistently with his professed goal “to advocate a completely neutral approach that would lift the Court above the realm of politics” (p. xii). Of course, this deviation from a neutral approach had to do with Scalia’s methods of constitutional and statutory interpretation. Scalia’s overarching judicial philosophy was that judges should enforce the law as written in a way that respected democratic processes and limited judicial discretion. When interpreting law, Scalia purported to rely on democratically-approved text and its meaning as generally understood at the time it was enacted. This approach is referred to broadly as originalism.

Hasen argues that there are two problems with Scalia’s use of originalism. For one, the law is often indeterminate and yet Scalia proclaimed great certainty in his originalist interpretations of law, even in the most challenging cases. Beyond this, Scalia had no qualms with publicly chastising others whom he thought interpreted the law incorrectly – and he did so with language described as both caustic and sarcastic. Secondly, Hasen believes that justices are largely results-oriented. And, he argues, Scalia was no exception. His decisions often coincided with his policy preferences despite lofty rhetoric and the use of a purportedly neutral approach.

WHEN FREE EXERCISE AND NONESTABLISHMENT CONFLICT

Vol. 29 No. 4 (April 2019) pp. 40-42

WHEN FREE EXERCISE AND NONESTABLISHMENT CONFLICT, by Kent Greenawalt. Cambridge, MA: Harvard University Press, 2017. 293pp. Cloth $39.95. ISBN 9780674972209.

Reviewed by Philip Kronebusch, Department of Political Science, St. John’s University (MN). Email: pkronebusch@csbsju.edu.

At a basic level, the two religion clauses of the First Amendment complement each other; Congress can neither establish a religion nor can it prohibit the free exercise of a religion. Over time, judges and scholarly commentators have often treated the two clauses separately, classifying some cases as establishment clause cases and others as free exercise cases. Kent Greenawalt largely maintains this practice in a large body of published scholarship, having published an earlier two-volume work, RELIGION AND THE CONSTITUTION, with a volume dedicated to each clause.

In his newest work, WHEN FREE EXERCISE AND NONESTABLISHMENT CONFLICT, Greenawalt’s attention turns to issues that present some mixture of the values of the two clauses. While he uses the term “conflict” in the title, he makes it clear early on that he is not looking at just conflicts, but rather he is focusing on issues where the values of each clause have tension with each other. The author’s key point throughout the book is that many cases involving the religion clauses are best analyzed and understood by recognizing the competing values of the establishment clause and the free exercise clause.

The Supreme Court’s school prayer decisions provide an early example of the mixture of competing values. While these cases are usually analyzed as presenting establishment clause issues, Greenawalt asks the reader to recognize that many students in American public schools may wish to take time to pray and that the teacher providing a moment of silence might be facilitating the free exercise of religion. However, Greenawalt does not disagree with the Supreme Court’s majority decision striking down Alabama’s moment of silence in WALLACE v. JAFREE. Rather, the flaw of Alabama’s law was that “voluntary prayer” was included as a purpose of the law. For Greenawalt, “moments of silence should be constitutionally accepted, so long as no one is told she must or absolutely should pray” (p. 31).

Among the strengths of the book is the attention given to religion clause issues beyond those, like school prayer, that have led to several Supreme Court decisions. Greenawalt dedicates a chapter to the challenges presented when a government directly employs a religious minister as a chaplain in the military or in prisons. Here we see a clear example of the tension between establishment clause and free exercise values. Government hiring and payment to a religious minister would, in most contexts, constitute establishment. However, without these ministers, the ability of soldiers and prisoners to exercise their religion freely would be severely limited. Greenawalt argues that the constitutional value of free exercise allows government to do what would otherwise be problematic under the establishment clause. While the book only occasionally discusses historical understandings of the religion clause, the author’s argument is further supported by citing that Congress authorized army chaplains in 1791, the same year it adopted the Bill of Rights (p. 47). Greenawalt goes on to consider a number of additional issues raised by prison chaplains as government employees. He argues that while a prison chaplain should be permitted to write a letter of support for a prisoner’s application for parole, it would be constitutionally impermissible for the chaplain to serve as a member of a parole board.