CREATING THE LAW: STATE SUPREME COURT OPINIONS AND THE EFFECT OF AUDIENCES

Vol. 30 No. 6 (July 2020) pp. 96-99

CREATING THE LAW: STATE SUPREME COURT OPINIONS AND THE EFFECT OF AUDIENCES, by Michael K. Romano and Todd A. Curry. New York: Routledge, 2020. 184pp. Cloth $124.00. ISBN: 978-1-138-61683-7. Paper $35.96. ISBN: 978-1-138-61684-4.

Reviewed by Abigail A. Matthews, Department of Political Science, University at Buffalo, SUNY. Email: aamatthe@buffalo.edu.

For whom do state supreme court justices write? And how do those audiences affect a state supreme court’s opinion? Those are the primary questions Romano and Curry address in CREATING THE LAW: STATE SUPREME COURT OPINIONS AND THE EFFECT OF AUDIENCES. In one of the first book-length analyses of the state supreme opinion writing process, Romano and Curry build on the work of federal court scholars such as Maltzman, Spriggs, and Wahlbeck (2000) and Baum (2006), arguing that state supreme court judges engage in strategic behavior to achieve policy goals while simultaneously protecting their vulnerable authority, thanks to shorter tenure periods than Article III judges. Harnessing the research potential from variation among the states, Romano and Curry seek to understand how audience, environmental, and institutional factors constrain the opinion writing process.

A key assumption upon which they build their argument is that state supreme court judges are political representatives. While judges do not have the same tools as legislators to remind voters of who they are and the work they do, Romano and Curry argue that these judges can engage in credit claiming by strategically writing their opinions. When judges explain their choices in their written opinions, they are using the space to appease their constituents’ audiences, Romano and Curry argue. They go on to connect this to retention incentives and legal language. Unlike traditional political representatives who rely on various mediums to credit claim, judges put all their decisions in writing for the public to read (p. 22).

Building from the assumption that state supreme judges are political representatives, a critical question in CREATING THE LAW is who makes up the judges’ constituency. According to Romano and Curry, those who vote to keep judges in their seats are the “authorizing” or “constituency” audience. In retention systems, citizens are the authorizing constituency and in states that appoint justices, governors or legislators are the justices’ audience. Yet the constituency is not the only audience for whom judges write; judges also write with fellow members of the court in mind. The book’s [*97] research design does a good job balancing efforts to measure and analyze the authorizing constituency with the influence of court colleagues.

Diving into the language of the written opinions, CREATING THE LAW posits that judges are intentional in how they justify and persuade. The key to Romano and Curry’s argument is that justification and persuasion are distinct tools. Judges use justification when they want to present only one correct choice while persuasion acknowledges that there are several choices available, but the judge’s choice is the best. Persuasion requires the judge to advocate for their position and when engaging in persuasion as a tactic, judges present information to “maximize” the success of their opinion.

Romano and Curry operationalize justification and persuasion concepts as opinion clarity, argument complexity, and authenticity. They measure justification by its readability—how well a judge conveys the “correct” choice. They also measure justification by analogical reasoning language. Romano and Curry operationalize persuasion using argument complexity, or the judge’s ability to evaluate complicated situations and arrive at a decision. To further evaluate persuasion, they measure an opinion’s authenticity or tone, the counterpart of argument complexity. However, Romano and Curry note that the distinction between the justification and persuasion can be “amorphous” (p. 34). Because the authors attribute specific meanings to the terms, and because I often use the terms interchangeably, I found it to be a bit confusing at times. Examples to illustrate the terms, especially how each measure is operationalized, would have been helpful in better understanding the overarching arguments.

THE US SUPREME COURT AND THE CENTRALIZATION OF FEDERAL AUTHORITY

Vol. 30 No. 6 (July 2020) pp. 92-95

THE US SUPREME COURT AND THE CENTRALIZATION OF FEDERAL AUTHORITY, by Michael A. Dichio. Albany, New York: SUNY Press, 2018. 294 pp. Hardcover $95. ISBN: 9781438472539. Paperback $32.95. ISBN: 9781438472522.

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

Michael A. Dichio’s THE US SUPREME COURT AND THE CENTRALIZATION OF FEDERAL AUTHORITY is a volume whose brevity (just 152 pages of text) belies its broad sweep across most of American history and extensive data collection and analysis. The book’s brevity also belies how challenging this work may be to grasp for a reader not already deeply immersed in the author’s subfield.

As a student of American Political Development (ADP), Dichio’s stated goal is to scrutinize “the Supreme Court’s role in national state expansion since the founding” (p. xxiv). In contrast to what he sees as a narrower focus within the ADP literature on Weberian bureaucracy and comparative political development (p. 2), Dichio turns his attention instead to the Supreme Court “as a key centralizer of federal authority” through its constitutional rulings (p. 2). While previous scholars have demonstrated the judiciary’s role in re-allocating power from the states to the federal government, Dichio’s primary contribution is the historical breadth of his data with an investigation spanning most of American history rather than focusing on any particular time period(s).

To that end, Dichio pulls together an extensive database of over 600 constitutional rulings from ratification in 1788 through 1997 to examine patterns across key issue areas as well as across multiple “dimensions of the federal government” (p. 65). His analysis reveals a generally steady pattern of rulings over the Court’s history that have directed power from the states to the national government. As he puts it, “the Court--through time and regardless of its ideological composition--has persistently acted as an important instrument of the broader central state, expanding federal authority over society” (p. 143).

Dichio’s method of case selection is intriguing: He identified “landmark constitutional decisions” for his database by scouring top “constitutional law casebooks and treatises published between 1822 [*93] and 2010” (p. xxiii). Specifically, he sought cases that were widely understood to have served as influential precedents since being handed down, and cases included in at least 6 of his separate reference sources made the cut (p. 32). Dichio used multiple methods to validate his database, including evaluating his identified cases against Fowler and Jeon’s (2008) “‘authority score’” of case citations (p. 33). Using this database, Dichio examined historical patterns of Supreme Court decisions’ impact on the balance of national versus state authority across a range of issues. Both decisions upholding federal policies and decisions striking down state policies (thus supporting federal over state authority) were coded as having directed power from the states to the central government.

Overall, Dichio finds that a resounding 60% of cases reviewed from 1789-1997 resulted in some form of centralizing of power with the national government (p. 39). Dichio asserts that, contrary to common narratives, the Supreme Court consistently rendered decisions that consolidated central authority a majority of the time. While acknowledging that the Court’s pattern of centralizing power wasn’t perfectly steady over time, he argues the data unexpectedly show a great deal of consistency. For example, despite the infamy of the DRED SCOTT V. SANDFORD (1857) decision and its blow to federal power in striking down the 1820 Missouri Compromise, Dichio’s data show that more than half of the Taney Court’s key federalism-impacting decisions actually favored centralized authority (pp. 72-73).

THE WILL OF THE PEOPLE: THE REVOLUTIONARY BIRTH OF AMERICA

Vol. 30 No. 6 (July 2020) pp. 86-91

THE WILL OF THE PEOPLE: THE REVOLUTIONARY BIRTH OF AMERICA, by T.H. Breen. Cambridge, MA: Harvard University Press, 2019. 272pp. Hardcover $29.95. ISBN: 978-0-674-97179.

Reviewed by Matthew B. Kirk, Department of Political Science, University at Albany. Email: mbkirk@albany.edu.

In many accounts of the American Revolution, scholars frame the concept of popular will in terms of the political philosophies espoused by the founding generation. Whether drawing from Locke, Montesquieu or others, these portrayals note how popular consent and legitimacy permeated the thought of the nation’s founding leaders. Yet popular will itself may not be manifest in these heady notions. T.H. Breen’s THE WILL OF THE PEOPLE combats the prevailing narrative that public will during the American Revolution responded to admonitions from key political leaders who extracted principles from political theory. Instead, the “voice of the people” can be found in the sentiments of communities as they participated in local affairs. Drawing from a series of localized narratives, Breen offers an alternative theory that envisions the Revolution as ensconced in communal organizations – in committees, church congregations, etc. In doing so, his text captures a genuine popular will as it emerged in the politicking of ordinary people.

Consulting a wide array of primary sources – including letters, accounts of sermons, newspapers, and local committee reports – Breen constructs an evolving portrait of revolutionary stages from the “ground up.” Of these sources, the notes and actions of local committees (of correspondence, safety, and inspection) offer the greatest repository of localized political interests. The various committees regulated and maintained revolutionary fervor at a local level where broader political movements could not reach. While Breen gives some deference to the influence of high minded theorists or noteworthy events, he ultimately locates the revolution in the ground level maintenance of the revolutionary agenda. As a result, the portrayal of public will during the era is wide ranging; committee notes from local townships are juxtaposed with gubernatorial dictums, allowing the author to make an argument for an inclusive conception of public will across the nation. Taking this evidence together, Breen offers a chronological history of the Revolution that proceeded along a series of stages, with each marked by a particular discursive theme. [*87]

In Breen’s account, it was emotive impulses and restraints that characterized the shifting sentiments across the Revolutionary period. Breen offers a historical account of these evolving emotive impulses; instead of a trajectory from the Declaration of Independence to the Treaty of Paris or an account of leaders’ invocation of Locke and Montesquieu, he argues that emotion that guided the actions of communities that in turn maintained the Revolution. As a result, the history offered is comprised of six discrete epochs of sentiment. A sensation of rejection following the failure to arrive at amicable reconciliation (taking the form of the Coercive Acts) gave way to assurance that resistance in the ensuing conflict was justified. The next period was dominated simultaneously by fear and justice: faced with the threat of domestic enemies, local communities vacillated between fear of those enemies and a sense of justice that produced judicial restraint when addressing them. Towards the end of the war, hyperinflation incentivized speculation and profiteering among neighbors – leading to a sense of betrayal. Following the Treaty of Paris, a wave of refugees – consisting of Tories desirous of returning to their homes – facilitated a transition to a new period of revenge. This comprised the final emotive evolution of the Revolutionary epoch, as local discourse revealed a desire for revenge against those who had betrayed the cause of the Revolution. Combined, each of these eras suggests that the true location of revolutionary politics lay in community endeavors instead of those political philosophies.

Breen is particularly adept at illustrating each of these emotive periods with local discourses and histories, with one significant event to frame each chapter. For example, a chapter on the theme of justice revolves around the attempts of Alexander Hanson (a judge in Frederick County, Maryland) to punish Toryism with increasingly savage methods. In that particular instance, plans to draw and quarter political prisoners were quickly shelved in favor of more civilized executions. Breen’s contextualization of each chapter around such a story is illustrative of the tension between the emotions that dominated local discourse and the institutional structures that worked to restrain those emotive impulses. The remainder of each chapter is filled with histories of similar experiences depicting a local mode of politicking that exists without reference to the dictums of leaders (or at least politicking that only grudgingly adheres to mandates from above when they conflict with sentiments in the locale). What results is a complex arrangement whereby the overall work is a narrative of both emotion and restraint of emotion; persons “on the ground” experienced these emotions in response to broader events, yet the exhibition or inhibition of such emotive impulses occurred within those ground-level, idiosyncratic [*88] contexts. While this occasionally clouds the argument that each period is characterized by an overarching shifting popular sentiment, one must bear in mind that Breen’s argument is one of shifting spheres of discourse – not necessarily monolithic paradigmatic shifts. For example, local discourses surrounding the Treaty of Paris were not dominated by the desire for revenge per se; rather, the sentiment of revenge shaped the scope of the content of the debates in that period.

HANDS UP, DON’T SHOOT: WHY THE PROTESTS IN FERGUSON AND BALTIMORE MATTER, AND HOW THEY CHANGED AMERICA

Vol. 30 No. 5 (June 2020) pp. 81-85

HANDS UP, DON’T SHOOT: WHY THE PROTESTS IN FERGUSON AND BALTIMORE MATTER, AND HOW THEY CHANGED AMERICA, by Jennifer E. Cobbina. New York: New York University Press, 2019. 244 pp. Cloth $89.00. ISBN: 9781479818563. 288 pp. Paper $25.00. ISBN: 9781479874415.

Reviewed by Anna Gunderson, Department of Political Science, Louisiana State University. Email: agunderson@lsu.edu.

HANDS UP, DON’T SHOOT: WHY THE PROTESTS IN FERGUSON AND BALTIMORE MATTER, AND HOW THEY CHANGED AMERICA is an important addition to our understanding of political science, social movements, and police brutality. Jennifer E. Cobbina builds a rich narrative on the causes and consequences of police brutality, relying on a series of interviews conducted in Ferguson, Missouri, and Baltimore, Maryland, in the aftermath of the deaths of Michael Brown and Freddie Gray, respectively. Her careful attention to detail and use of rich qualitative evidence provides a wide scope for examining police brutality and subsequent protests, but she casts perhaps too wide a net to fully address each of the ambitious questions Cobbina seeks to answer.

Cobbina begins the book with a retelling of the facts of the Brown and Gray cases, both young Black males who died after interactions with the police; in Ferguson, Brown was in an officer-involved shooting with a White police officer, and in Baltimore Gray died as a result of officer use of force. These events ignited a firestorm of protests and public attention to police brutality in these two cities and sparked a nationwide conversation about the role that race and racism play in officer use of force. This is the context which serves as inspiration and subject of Cobbina’s book. She uses these two events to pose a series of questions: how does race condition civilian interactions with the police (and, with Black police officers specifically)? How did civilians get involved in the subsequent protest events after Brown and Gray’s deaths and how did the repressive police actions during the protests influence the future likelihood of participants protesting again? Finally, why did the events in Ferguson and Baltimore capture national attention? This ambitious book seeks to provide at least a tentative answer to all of these questions using powerful qualitative work and theoretical rigor on race, policing, and protest. [*82]

Chapter 1 details the racialized history of law enforcement and how policing originated to support the institution of slavery and the subjugation of Black Americans. After slavery was outlawed, Black Codes – criminal laws that created new offenses like “loitering” and “vagrancy” to target free Blacks and imprison them – took its place. These Black Codes soon faded, replaced with Jim Crow laws that codified different rules for Blacks and Whites through the mid-twentieth century. The Civil Rights movement sought to eliminate these laws and fight for social justice, though that movement was met with repressive policing tactics in response. Cobbina argues that this legacy of slavery and dominance shapes Blacks’ contemporary attitudes about the police and the criminal justice system. She then details the myriad evidence pointing to disparate outcomes for Whites and Blacks in police activities like traffic stops and police surveillance. For example, “many police use race – Blackness – as an indicator of criminal propensities” (p. 23). These inequities are even further compounded by de facto racial segregation, resulting in lower perceptions of police legitimacy and vast differences in public opinion about policing across racial categories.

It is in this context – in which Blacks experience disproportionate police attention – that Chapter 2 begins. This chapter details the personal experiences of those stopped by the police and the idea that Black Americans are “guilty until proven innocent.” Cobbina introduces the qualitative interviews used in the remainder of the book: a series of in-depth interviews with 100 Ferguson residents and 92 Baltimore residents in the aftermath of Brown and Gray’s deaths. In analyzing these interviews, she finds that most subjects had negative experiences with the police. These negative experiences centered around common police actions – like aggressive policing, stop-and-frisk procedures, and police discourtesy – and Black participants were more likely to report negative experiences than White respondents in both cities. Some also reported positive interactions with the police as participants reported police are “just trying to do [their] job[s]” (p. 51). Overall, this chapter suggests that White interviewees were afforded respect by the police, whereas Black interviewees were treated with suspicion and presumption of wrongdoing.

Chapter 3 considers how the integration of Black police officers specifically influences citizens’ evaluations of the police. Cobbina found three, sometimes conflicting, themes in her qualitative work: “Black officers were viewed as courteous and understanding; Black police were depicted as aggressive in nature; and Black law enforcement was described as facing occupational socialization on the job” (p. 57). Though some respondents mentioned how Black [*83] police officers may be more likely to understand the local Black community and culture, others thought Black police officers were even more harsh than White officers in an effort to conform to police culture and seek acceptance from their colleagues. Cobbina argues that these inconsistencies highlight how simply increasing diversity in police forces does not necessarily address structural problems in our institutions or neighborhoods.

SCOTUS 2018: MAJOR DECISIONS AND DEVELOPMENTS OF THE US SUPREME COURT and SCOTUS 2019: MAJOR DECISIONS AND DEVELOPMENTS OF THE US SUPREME COURT

Vol. 30 No. 5 (June 2020) pp. 74-80

SCOTUS 2018: MAJOR DECISIONS AND DEVELOPMENTS OF THE US SUPREME COURT, by David Klein and Morgan Marietta (eds). Cham: Switzerland: Palgrave Macmillan, 2019. 146pp. ISBN: 978-3-030-11254-7. ISBN: 978-3-030-11255-4 (eBook).

SCOTUS 2019: MAJOR DECISIONS AND DEVELOPMENTS OF THE US SUPREME COURT, by David Klein and Morgan Marietta (eds). Cham: Switzerland: Palgrave Macmillan, 2020. 158pp. ISBN: 978-3-030-29955-2. ISBN: 978-3-030-129956-9 (eBook).


Reviewed by Alison Merrill, Department of Political Science, Susquehanna University. Email: merrill@susqu.edu.

Throughout history, the United States Supreme Court has served as a major player in shaping the character and direction of public policy through the decisions it hands down. As an institution, however, the implications and impact of the Court's decisions are often overlooked or not understood by the majority of citizens. This lack of understanding can often be attributed to a lack of clear, immediate discussion of the rulings and their meanings. SCOTUS 2018 and SCOTUS 2019 are the first two installments in a new series aimed at increasing the understanding of recent Supreme Court decisions and promoting discussion on the topic. These volumes dedicate single chapters to the major cases from each term, written by noted scholars of both law and American politics. To aid in the clarity of understanding the rulings and their meanings, each chapter follows the same general outline; specifically, the chapters are organized by first the details of the ruling, then what it means for legal debate, and finally what the implications of the ruling are for public policy or partisan politics (p. vi). By organizing the discussion of the rulings in a systematic manner, the editors aim to provide a useful and meaningful addition to the public discussion of the Constitution and the Court. The result is a volume that can be understood by anyone interested in learning more about this institution and its impact on the development of the American political system.

Chapter 1 of each volume begins with an introduction to each term. This chapter identifies the contentious questions that the Court addressed (which are then covered in more detail in later chapters) and neatly summarizes each case in the volume in a single sentence. Perhaps what is most useful is that following the summary of the cases, Marietta then groups the cases by issue area or topic (e.g., [*75] dignity, social facts, criminal law, separation of powers, etc.). In these sections, he reviews the main question raised in each case that falls under these topic headings and proceeds to discuss not only how the Court reached their decision, but also the major implications and big takeaways from these decisions and how they fall into a broader understanding of the development of American jurisprudence. Further, Marietta discusses the impact of judicial ideology on the outcome of the case, and briefly touches on how certain justices voted and the importance of vote breakdowns in these cases. These first chapters in each volume are crucial in setting the stage for why the cases included in the volume are important for understanding the significance and impact of the Supreme Court in American politics and the daily lives of Americans.

SCOTUS 2018 covers issues concerning digital privacy, partisan gerrymandering, voting rights, public sector unions and coerced speech, gay right versus religious liberty, internet taxation, and the four corners doctrine and presidential power. The editors note that while these are all important questions which affect the daily lives of Americans in complex and varied ways, perhaps the most important events in this term were the arrival of Justice Gorsuch, the retirement of Justice Kennedy, and the dark shadow cast by the contentious confirmation hearings for Brett Kavanaugh. Despite the increased attention to personnel changes on the Court in 2018, the Court also dealt with major cases focusing on social facts and the “prevailing circumstances the Court must recognize in order to apply constitutional principles, especially when those facts are in contention” (p. 1).

For these reasons, the discussions surrounding social facts stood out as particularly strong in this volume, which include Chapters 2, 3, and 8. In Chapter 2, David Klein reviews CARPENTER V. UNITED STATES (2018) which raised the question of how easy it should be for the government to access information stored and transmitted (often unknowingly) from cell phones when it suspects someone of criminal activity. Here, Klein points out that the Court's decision rested heavily on the reasonable expectation of privacy test created in KATZ V. UNITED STATES (1967), and that enough observations taken from an individual's cell phone to determine location can erode that person's reasonable expectation of privacy, even when in a public place. Therefore, if authorities want access to cell location information, a warrant is typically required. This is an example of the majority acknowledging the pervasiveness of cell phone use in modern society. As Klein points out, however, it actually raises more questions about which technological intrusions [*76] are permissible and which go too far that the Court will have to address in future cases.

NO PROPERTY IN MAN: SLAVERY AND ANTISLAVERY AT THE NATION’S FOUNDING

Vol. 30 No. 5 (June 2020) pp. 71-73

NO PROPERTY IN MAN: SLAVERY AND ANTISLAVERY AT THE NATION’S FOUNDING, by Sean Wilentz. Cambridge, MA: Harvard University Press, 2018. 350pp. Hardcover $26.95 ISBN: 9780674972223.

Reviewed by Stephen Lansing, Department of Political Science, State University of New York at Albany. Email: sjlansing@albany.edu.

In his new work, NO PROPERTY IN MAN: SLAVERY AND ANTISLAVERY AT THE NATION’S FOUNDING, political historian Sean Wilentz presents a new and potentially controversial interpretation of the constitutional debate over slavery during the founding era of the United States. While acknowledging the pivotal role slavery played during the development of the U.S. Constitution, Wilentz calls for a reevaluation of this subject and asserts that the issue may be as one-sided as historians have previously believed. He argues that the focus on the Constitution as an “entirely proslavery document” misconstrues subtle actions taken by certain constitutional framers to instill antislavery sentiments in the founding document. According to Wilentz, while antislavery forces at the Constitutional Convention did make concessions to slaveholding powers that impeded future abolitionist efforts, they also made strategic distinctions that would open the door for future abolitionists to fight slavery in the United States. The book focuses on the antislavery framers’ refusal to explicitly acknowledge “property in man” which was a key theoretical argument in favor of maintaining slavery. Wilentz believes that this important technical distinction created a paradox at the heart of the American Constitution.

Wilentz situates his argument in the larger political-historical discussion regarding the role of private property in American Constitutional government. He advances the idea that defining what constitutes property was as essential to the development of the U.S. Constitution as the belief in the sanctity of private property in abstraction. It is through this lens that he aims to reexamine the 1787 debates regarding the place of slavery in the newly formed constitutional government and its long-term implications. He presents his argument in a chronological fashion, giving particular focus to antislavery attempts to discredit the concept of human beings being considered property. From this starting point, he relays the proslavery responses to this belief and presents the dialogue that occurred around the issue. [*72]

NO PROPERTY IN MAN begins its story prior to the Constitutional Convention of 1787, discussing the birth of antislavery politics and how the concept of “property in man” became central to both pro- and antislavery arguments. Wilentz argues that American antislavery sentiments were a revolutionary occurrence in the context of world history and that these ideas centered on the refusal to promote the commodification of human beings. He chronicles the development of several early abolitionist societies and situates them in the regional dialogue that took place around the fight to either preserve or abolish slavery. From these early rumblings of antislavery sentiment, he then turns to the Constitutional Convention itself. Relying heavily on the personal and private notes of James Madison and other delegates, Wilentz reconstructs the arguments regarding slavery that were expressed. Leading naturally from the convention he follows these debates through the drafting process to ratification and beyond. Throughout this drafting and ratification discussion, Wilentz highlights the tactical negotiations between proslavery and antislavery forces. He stresses that every decision made by early abolitionists was intended to halt slavery’s codification in national law and stifle proslavery attempts to sanction human bondage as an unalterable federal institution (while simultaneously making large concessions to proslavery forces). Finally, the book extends beyond the founding to the politics of slavery in antebellum American and how they played out over the next sixty years, inevitably leading to the American Civil War.

While Wilentz’s analysis does present an interesting new way to understand the founding debates regarding slavery, there do seem to be some limitations to his analysis. First, he attempts to infer particular meaning from primary notes and documents taken from the framers where such interpretation may not be warranted. Similar to many other constitutional analyses, the available firsthand evidence on meaning and intent regarding the U.S. Constitution is particularly sparse. Wilentz, however, presents several examples of delegates promoting antislavery beliefs or sentiments that could not explicitly be verified. While this limitation may detract from some individual points made in the book regarding committee discussions or closed votes, it does not detract from the overall argument which is bolstered by other publically available accounts.