SUPREME INEQUALITY: THE SUPREME COURT'S FIFTY-YEAR BATTLE FOR A MORE UNJUST AMERICA

Vol. 32 No. 7 (July 2022) pp. 87-90.

SUPREME INEQUALITY: THE SUPREME COURT'S FIFTY-YEAR BATTLE FOR A MORE UNJUST AMERICA, by Adam Cohen. New York: Penguin Random House Books, 2020. pp.448. Paperback $18.00. ISBN: 9780735221529.

Reviewed by Thaddeus Hwong. School of Public Policy and Administration, York University, Canada. Email: thwong@york.ca.

If you think the Supreme Court of the United States has always been there to protect the weak from the strong as in the poor from the rich, think again. That is in essence what Adam Cohen argues in his book.

The book is not the first to argue that the Court did not do what a court of justice was supposed to do. A few years ago, Erwin Chemerinsky made a compelling case in his 2014 book. He showed that the Court supported slavery, fortified racism and did a whole lot more damage to civil liberties. Building on that line of inquiry, Cohen shows that the Court cuddled the rich and hurt the poor. His book fits snuggly alongside Chemerinsky’s in a library shelf of books unravelling the Court’s misdeeds hidden in plain sight – Cohen’s 2017 book on the Court’s role in legitimizing eugenics, Adam Harris’ 2021 book on the Court’s role in depriving education opportunities from Black people and Chemerinsky’s 2021 book on the Court’s role in promulgating police violence.

As Cohen doesn’t mince words about the Court, and as he writes with convictions, this review would make productive use of his own words in trekking the path he paves to reach an observation that America just might not be ready to fathom.

In Cohen’s snapshot, the Court might look like it had been starring in a dystopian epic. “The Court had not merely stopped its efforts to lift the boots of oppression off the necks of the poor; it had also gotten in some kicks of its own.” (p. 310). The Court was not a passive bystander but an active perpetrator. “The Supreme Court is more than a legal tribunal, ruling on disputes between parties – it is also an architect. The Court’s interpretations of the Constitution and other laws become blueprints for the nation, helping to determine what form it will take and how it will continue to rise. For the past half century, the Court has been drawing up plans for a more economically unequal nation, and that is the America that is now being built.” (p. 317). In its past the Court could have done the right thing, but it didn’t. Time and time again. The history of the Supreme Court is where the romanticism about the pursuit of justice goes to die.

LEGALIZING SEX: SEXUAL MINORITIES, AIDS, AND CITIZENSHIP IN INDIA.

Vol. 32 No. 7 (July 2022) pp.91-93

LEGALIZING SEX: SEXUAL MINORITIES, AIDS, AND CITIZENSHIP IN INDIA, by Chaitanya Lakkimsetti. New York: New York University Press, 2021. pp.199. Paperback $30.00. ISBN number: 978-1-4798-2636-0.

Reviewed by Dhanya Babu. Department of Criminal Justice. John Jay College of Criminal Justice. City University of New York. Email: dbabu@jjay.cuny.edu.

In LEGALIZING SEX: SEXUAL MINORITIES, AIDS, AND CITIZENSHIP IN INDIA, Chaitanya Lakkimsetti explores the experiences of gay activists, transgender communities, and sex workers to understand how biopolitical opportunities shaped the ways that sexual minorities asserted their rights. In order to understand the shared and interconnected experiences and outcomes of activism of these various groups, Lakkimsetti expands the scope of the term “sexual minorities” to include “Men who have Sex with Men” (MSM), Transgender persons, particularly Hijras and Kothis, and sex workers. This well-researched book draws its findings from multiple sources, including twenty months of ethnographic observations, and 85 in-depth interviews backed up by legislative and judicial reports and documents. Lakkimsetti’s book offers a significant contribution that decenters and expands global queer scholarship by drawing attention to the lives of “LGBTKQHI” and sex worker communities in India (p.9). Lakkimsetti uses Foucauldian frameworks of biopolitics and governmentality to understand the intricacies of the state’s regulatory power in relation to the sexually-marginalized communities.

The book offers a beautiful consolidation of five chapters. The first chapter sheds light on the complexities of the HIV/AIDS epidemic in the 1980s that categorized sexually-marginalized communities as “high risks groups”, especially MSM, sex workers, and transgender persons. The chapter further explores how AIDS shifted the political landscape and the relationship between the state and sexual minorities. Lakkimsetti argues that, as the HIV/AIDS epidemic became an acute crisis that needed the state’s attention, the state’s approach towards sexually-marginalized communities transformed from an exclusionary and juridical imposition of power to a biopolitical partnership.

In the second chapter, Lakkimsetti provides a closer view of the relationship between the state and the sexually-marginalized communities before and after the HIV epidemic. Here, the author provides several accounts of the criminalization and arbitrary violence perpetrated by state agents and experienced by LGBTQHI and sex worker communities. “The HIV/AIDS biopower produces a different relationship between the sexual minorities and the state, one where they are for the first time considered not just as criminals but as partners for these biopower projects” (p.62). However, it was impossible to carry out uninterrupted HIV/AIDS projects without addressing the most immediate problems these communities faced: criminalization and police violence.

CHEAP SPEECH: HOW DISINFORMATION POISONS OUR POLITICS—AND HOW TO CURE IT

Vol. 32 No. 6 (July 2022) pp. 84-86

CHEAP SPEECH: HOW DISINFORMATION POISONS OUR POLITICS—AND HOW TO CURE IT.
by Richard L. Hasen. New Haven: Yale University Press. pp.245. Cloth:. $27.50. ISBN: 978-0-300-25937-7.

Reviewed by Mark Rush. Department of Politics. Washington and Lee University. Email: rushm@wlu.edu.


About halfway through CHEAP SPEECH, Rick Hasen asks what is perhaps the key question in contemporary debates about speech regulation: “If the First Amendment were no impediment to regulation, which laws would work best to deal with cheap speech problems for voters?” (p.81). In the end, he acknowledges that “[i]t is uncertain whether the Supreme Court will accept as consistent with the First Amendment my proposed cures for the [cheap speech] poisoning our politics” (p.165). In between those passages, he offers several suggestions about how to resolve the impact that cheapened speech has had on American elections and, more broadly, American democracy.

CHEAP SPEECH is a noble effort that addresses what Hasen aptly describes as the poisoning of American (and, of course, global) political discourse. He offers a balanced assessment of the debasement of political debate, and the exacerbation of political divisions in the United States over the last decade. In the end, he essentially calls for the strengthening of government, political parties, journalism, and other mediating institutions. This would, Hasen hopes, restore order to politics and political discourse by creating means where political information can be screened for accuracy and where the credibility of disseminators of information can somehow be clearly determined. The question, of course, is whether this would be possible.

This is an important book and a powerful plea by one of the nation’s leading observers of elections and constitutional law. But, in the end, it does leave the reader hanging with uncertainty because, as Hasen acknowledges, his proposals unquestionably test the boundaries of the Constitution and prevailing understandings of the First Amendment. This is not to say that the debate should end here. Constitutional understanding evolves, and there is no reason to think that the scope and definition of “free speech” cannot or should not evolve in the same way that constitutional notions of privacy, search and seizure, equal protection, and so forth have morphed over the course of the nation’s history. In this respect, Hasen’s CHEAP SPEECH fits comfortably on the bookshelf next to Mary Anne Franks’ THE CULT OF THE CONSTITUTION. She calls for a less extreme approach to interpreting “free speech” toto enable the nation to address challenges posed by social media’s capacity to generate revenge porn and deep fakes. Hasen similarly asks for a re-articulation of free speech that would address and accommodate the realities of a social media-driven political process.

SHARIA, INSHALLAH: FINDING GOD IN SOMALI POLITICS

Vol. 32 No. 6 (June 2022) pp. 79-83

SHARIA, INSHALLAH: FINDING GOD IN SOMALI POLITICS, by Mark Fathi Massoud. Cambridge: Cambridge University Press, 2021. pp. 250. Paperback $34.99. ISBN: 978-1-108-96570-5.

Reviewed by Ricardo René Larémont, Department of Political Science, Binghamton University (SUNY). Email: laremont@binghamton.edu.

In SHARIA, INSHALLAH: FINDING GOD IN SOMALI POLITICS, Mark Fathi Massoud provides a thoroughgoing analysis of the role that Islamic law and customary law (xeer) have played in precolonial, colonial, and postcolonial Somalia. By examining the role of sharia and customary law in Somalia, Massoud may offer the proposition that sharia, perhaps when combined with customary law, may serve as the basis for establishing an effective rule of law that builds the foundations of peace and limits the arbitrary use of governmental power. Because his book more accurately describes how sharia and customary law work in tandem, I have some quarrel with the title of the book, which in my view is imprecise. More accurately, this is an analysis of how sharia and customary law work in combination to establish legitimacy, peace, and order. Massoud understands that the West, for the most part, opposes sharia and vilifies it. With evidence from the Somalia and Somaliland cases, Massoud challenges prevailing western assumptions that sharia undergirds authoritarianism and misogyny. He argues finally that sharia, because it is viewed as a legitimate source of law and conflict resolution in majority-Muslim countries, should be considered as a basis for creating law and stabilizing society.

Massoud starts from the premise that sharia is variable; it is understood and applied differently across diverse societies and states. He claims additionally that sharia is understood and utilized differently by grassroots residents and political elites. Elites, whether in the pre-colonial, colonial, or postcolonial contexts, have tried to apply sharia through state-controlled courts as part of the state building process. In many societies, however, particularly clan-based societies like Somalia, both sharia and customary law are used to mediate disputes in venues that are not controlled by the state. In Somalia, these community and clan-based methods of dispute resolution have been long-standing and have enjoyed widespread legitimacy among litigants because of their efficacy, equity, speed, and perceived lack of corruption. Furthermore, and this is important from the perspective of stabilizing societies, in many Muslim-majority societies the legitimacy of the legal process is inextricable from religion, which provides the society with statutes, processes of dispute resolution conducted by those learned in the law or who are esteemed within the community, and an ethical structure that informs the norms of acceptable and unacceptable behavior. Because the law emerges from sacred texts and ancillary procedures of dispute resolution administered by those learned in the law or esteemed in community, this legal process has legitimacy in the ethical, political, and legal realms. The constructed modern state, by contrast, inorganically tries to build court systems and impose them on residents. The state process necessarily is a top-down process, which is logical from the perspective of state building. Nevertheless, these state-created systems of law may be viewed as illegitimate because they may be perceived as being “foreign” and not fully grounded in Islam or Islamic law, which partially delegitimates them.

These different processes of dispute resolution can lead to dialectical conflict. The State aims to be modern and powerful, which requires the creation of a court system that is under its control. The residents of Somalia and Somaliland, however, where clan- and community-based systems of dispute resolution have been long-standing and have legitimacy, have often resisted state-based efforts to create court systems. In part, this can be viewed as illegitimate and irreligious. This creates a profound contradiction for the stabilization of society. The experiences in Somalia and Somaliland reveal repeated grassroots efforts to resist the creation of these state-controlled courts. In the struggle for power and legitimacy, sharia – mixed with customary law or xeer – has won the contest.

COMMAND AND PERSUADE: CRIME, LAW, AND THE STATE ACROSS HISTORY

Vol. 32 No. 6 (June 2022) pp. 76-78

COMMAND AND PERSUADE: CRIME, LAW, AND THE STATE ACROSS HISTORY, by Peter Baldwin.
Cambridge: The MIT Press, 2021. pp. 480. Hardcover $34.95. ISBN: 9780262045629.

Reviewed by Katheryne Pugliese, Department of Criminal Justice, John Jay College of Criminal Justice. Email: kpugliese@jjay.cuny.edu

Human behavior has settled down over the past millennium. This sweeping observation opens the argument in Peter Baldwin’s new book entitled COMMAND AND PERSUADE: CRIME, LAW, AND THE STATE ACROSS HISTORY. We are living in what Baldwin describes as, “a world that is by any measure better ordered, less violent, and more peaceful than any in human history” (p. 1). Yet, crime itself has increased as disorderly criminal behavior has been more restricted by the state and the public has become more involved in maintaining order. This concept is by no means novel. Steven Pinker (2011) popularized this idea most recently in his book entitled THE BETTER ANGELS OF OUR NATURE: WHY VIOLENCE HAS DECLINED, noting the immense role state power plays in conjunction with decreases in war and terrorism. Drawing from this popularized observation, Baldwin argues that the changes in politics and crime control are caused primarily by shifts in public attitudes and socialization towards crime control, which gave way to the growth of the powerful state we know today.

Baldwin makes the ambitious effort to illuminate the long-ranging global shift in law, crime, and public order over three millennia. He provides a thorough exploration of Common Era history while also recognizing the contradictions and complexities that are inherent to human behavior. not only a comprehensive exploration. In doing this, he breaks down even the simplest definitions and logic behind his arguments and demystifies the construction of modern legal systems. To communicate these ideas in terms of crime and politics, Baldwin writes with two goals in mind. First, he identifies global ideological shifts around the issue of crime and punishment. Secondly, he provides specific examples of how this phenomenon unfolds. As a result, this work reads like two books: the first aiming to meld ideology with observable patterns in crime and the second providing descriptions and explanations of crime and punishment in a historical context. The attempt to merge global shifts with specific changes in national or regional policy scatters the focus of this text, at times, and may overwhelm the casual reader.

A COURT OF SPECIALISTS JUDICIAL BEHAVIOR ON THE UK SUPREME COURT

Vol. 32 No. 6 (June 2022) pp. 72-75

A COURT OF SPECIALISTS JUDICIAL BEHAVIOR ON THE UK SUPREME COURT by Chris Hanretty. New York: Oxford University Press, 2020. 320pp. Hardcover $105.00. ISBN: 9780197509234.

Reviewed by Jennifer Bowie and Alexis Cobbs, Department of Political Science, University of Richmond. Emails: jbowie@richmond.edu and lexi.cobbs@richmond.edu.

A COURT OF SPECIALISTS JUDICIAL BEHAVIOR ON THE UK SUPREME COURT by Chris Hanretty provides one of the most comprehensive and rich analyses of the UK Supreme Court’s decision making. A COURT OF SPECIALISTS investigates various aspects of the UK Supreme Court decision making processes such as case selection, panel makeup and size, opinion authorship, and panel dissensus. Central to Hanretty’s argument is that the UK Supreme Court is a court of specialists, particularly when compared to other courts of last resort around the world; understanding the Court’s behavior must be done through this lens (p. 2). He suggests that “the bulk of its work in any given case is carried out by area specialists: individuals who have given over a substantial part of their career to tax law, family law, criminal law, or public law” (p. 2). Overall, A COURT OF SPECIALISTS is compelling, thorough, and offers new insights to the UK Supreme Court, and comparative courts more generally. Additionally, as Hanretty alludes, this is one of the first books to empirically examine judicial behavior on the UK Supreme Court (pp. 25-28).

Chapter 1 provides a descriptive overview of the UK Supreme Court and explains the Court’s role within the UK legal system. Hanretty spells out the organizational structure and staffing of the Supreme Court. In addition to providing readers with a basic overview of the UK Supreme Court’s organization, this chapter introduces readers to the book’s core argument that the UK Supreme Court is a court of specialists. In Chapter 2, Hanretty puts forth three main theoretical approaches to understanding judicial behavior in the UK: legal, organizational, and political. Hanretty makes a case on how these factors could influence the behavior of UK justices. For example, Hanretty suggests three legal factors that are useful to understanding justice behavior in the UK: the opinion below, area of law, and justice specialization. Likewise, Hanretty suggests that workload and case importance matter when understanding organizational factors. In addition, Hanretty also suggests that political influences can be best understood by examining agreement between justices and actor types (referring to litigant categories). While this chapter does not break any new theoretical ground, it does set the stage for how Hanretty analyzes the research questions covered in the book.

In Chapter 3, Hanretty examines how the Court sets its agenda—in other words, who gets heard. Hanretty provides a helpful primer on how case selection works in the UK. Generally, permission is required to appeal a case to the UK Supreme Court. In most instances, the Supreme Court is the body to grant permission; however, on rare occasions, permission may also be granted by the UK Court of Appeals (Note: The book details additional important nuances that are court and country specific. Scotland, for example follows a different process from England and Wales and Northern Ireland). Hanretty presents three models (legal, organizational, and political) of case selection. In the legal model of case selection, Hanretty finds that case importance positively influences the likelihood of Supreme Court review, as well as the opinion below. At the same time, the area of law is not statistically significant. Turning to the organizational model, Hanretty finds inconsistent evidence that workload influences the cases that the Supreme Court hears. More interestingly, Hanretty also finds that justices “do not shape the court’s docket so as to favor their own area of expertise” (p. 76). The political model shows that government litigants are more successful in permission to appeal applications than other litigant types (in the combined model, Hanretty finds similar results to the individual models).