by Gordon Silverstein. New York: Cambridge University Press, 2009. 332pp. Hardback. $80.00/£40.00. ISBN: 9780521896474. Paperback. $23.99/£15.99. ISBN: 9780521721080. eBook format. $19.00. ISBN: 9780511530432.
Reviewed by Tom S. Clark, Department of Political Science, Emory University. Email: tom.clark [at] emory.edu.
In LAW’S ALLURE: HOW LAW SHAPES, CONSTRAINS, SAVES, AND KILLS POLITICS, Gordon Silverstein sets out to provide a narrative framework for understanding the judicialization of policy choices. Central to his inquiry are two questions. First, why and how has judicial involvement in policy-making expanded throughout the course of American history (especially during the twentieth century)? Second, how does judicial involvement in policy-making play out, and what are the consequences of judicial involvement in political policy-making? Through a discussion of the Supreme Court’s growing breadth of engagement with political policy-making and a series of careful case studies, Silverstein provides an insightful “roadmap” for future scholars interested in exploring the causes and consequences of judicial policy-making. Indeed, the analyses in this book should provide considerable grist for the mill as this line of literature moves forward.
Silverstein begins in the Introduction by offering a term that will be at the center of his analysis. “Juridification” refers to “rel[iance] on legal process and legal arguments, using legal language, substituting or replacing ordinary politics with judicial decisions and legal formality” (p 5). Juridification represents the form of judicial intervention in policy-making in which Silverstein is interested. In Chapter 1, Silverstein then sets out to explore why a policy-maker may seek to juridify a policy, what role the courts play in the policy-making process once a question has been juridified, and how the process of juridification works.
Silverstein offers two possible reasons why juridification may take place. First, juridification may be preferred by relevant actors in the political system. There are four reasons why juridification may be preferred: (1) juridification may be believed to be the most effective, or a necessary, means of achieving a policy goal; (2) juridification may have “spill over” consequences, mobilizing or galvanizing a political movement; (3) the allure of law and the legal process may endow a policy change with a shine of normative superiority; and (4) juridification may be a politically expedient way of achieving a policy goal while allowing politicians to avoid blame for potentially unpopular changes. Second, juridification may take place because it is the only realistic option as a consequence of either profound institutional barriers or profound political barriers.
Two points in particular are worth noting here. First, Silverstein does an excellent job incorporating the relevant literature [*652] and demonstrates a strong command of the various factors that make “taking it to the courts” (my words, not his) the best way to achieve policy goals. However, the distinction between juridification as the only realistic option and juridification because it is preferred seems too strong. It seems, rather, that profound institutional or political barriers are simply an extreme case of an actor being motivated to pursue juridification for purposes of expediency or efficiency. In his later discussion of the process of juridification, and in his case studies, this distinction does not seem to play a critical role; the strict distinction early on is in some sense, then, distracting.
Second, Silverstein never provides a clear account of whom his theory addresses. Is it a theory about politicians? Activists? Somebody else? It becomes clearer later on that his claims are intended to apply broadly to anyone involved in pursuing juridification. However, it also becomes clear, then, that some of his claims apply better to certain types of actors than to others. I would have liked for Silverstein to draw out these distinctions more fully and describe the implications of the varying applicability of the possible incentives to the range of actors encompassed by his argument.
Having described the set of reasons why juridification may be pursued, Silverstein sets out to describe the process by which it takes place. Silverstein notes three functions the courts have traditionally served in American policy-making. When a policy question arises, the courts can (a) remain silent, (b) allow the government to take the action in question, or (c) block the government from taking a particular action. However, Silverstein argues, beginning in the 1960s, “the Warren Court first signaled the possibility that, in addition to its traditional function of saying what government could and what it could not do, the courts might now also be available to say what the government must do” (p.29). Except when the courts remain silent, judicial intervention – either blocking, allowing, or commanding – can either end the process or lead to an iterated process of policy-making with the elected branches of government. Silverstein asserts that more often than not, a court’s decision is “but the first step in a long, iterated chain, in which policies and decisions spiral from Court to elected branches, to administrative agencies, and back into Court” (p.30). Silverstein notes, though, that “juridification is not an all-or-nothing proposition, but rather spreads across a continuum” (p.38). Judicial decisions that end the process are simply one end of the continuum, and on-going, iterative policy-making is the other end. For Silverstein, the continuum extends from complete judicial control to an indeterminate back-and-forth between the courts and the elected branches. It strikes me, though, that the continuum of juridification actually extends from complete judicial control at one end to no judicial control at all, at the other end. The back-and-forth, indeterminate state is actually a point in between the two ends of the spectrum. While the range of interactions studied by Silverstein is reasonable and useful in its own right, I would have liked to see more discussion of the possibilities in the other half of the range of juridification – the half where the elected branches are more dominant, even while the courts still play some role. [*653]
Working together, the courts and other actors – specifically, the elected branches – can be either “constructive” or “deconstructive.” A constructive pattern emerges when the courts and other actors have aligned preferences and goals; their respective contributions work together to build a sound policy that operates well and continually evolves in a unified direction. A deconstructive pattern, by contrast, emerges when the various actors “are very much on different pages” (p.38). Deconstructive patterns need not be characterized by conflict among the various policy-makers but rather by poorly coordinated interactions. Silverstein argues that deconstructive patterns pose greater “risks” for policy entrepreneurs, because deconstructive processes can entrench problems and frustrate efforts to achieve specific goals. Whether the courts and the elected branches engage in a constructive or deconstructive process is driven by two factors: ideological alignment and the ways in which the various institutions approach the policy question.
In Chapter 2, Silverstein addresses the next point in his narrative: When did juridification begin to take place? Silverstein notes that courts have been actively involved in policy-making during many eras in American history and in areas involving important and salient policy questions. However, beginning after the New Deal, the courts, and the Supreme Court in particular, signaled their willingness to go beyond the allowing and blocking forms of juridification; the courts signaled their willingness to command government action. Silverstein points to three cases in particular that marked a changing judicial perspective on commanding government action. BROWN v. BOARD OF EDUCATION, and its progeny, commanded the government to take action to eradicate segregation in public education. BAKER v. CARR commanded the government to take action to protect voting rights and voting equality. GIDEON v. WAINWRIGHT commanded the government provide legal counsel to criminal defendants.
Silverstein does recognize, of course, that the Court’s command of government action is not new. “American judges have no problem telling people what they must do, and have done so for generations, although mostly in disputes dealing with property and contract claims. In areas concerning broader public policy claims, the shift from “can” and “cannot” to “must” represents and important break with past practice, though it followed quite logically from the American legal tradition” (p.60). Silverstein does not, however, provide much discussion concerning why this shift took place and what the consequences are. He provides some discussion of the historical division between law and equity, noting that the modern juridification of “broader public policy claims” is equivalent to the Supreme Court’s intervention in claims of equity.
Still, with the conclusion of Silvertein’s framework for thinking about juridification, one is left wondering why it matters. Why is it important to understand when and why policy questions become juridified? It is to this final point in his narrative that he turns in Chapter 3. The argument here is simple: courts are different. Courts are loath to overturn, or backtrack from, previous decisions, and juridified [*654] policies are therefore susceptible to a particular kind of path dependence. Crucially, either unilateral judicial policy-making, or an iterative process, in combination with the binding and constraining nature of judicial precedents, can shape the future and direction of the particular policy in question. And, the direction of judge-made policy can be stickier than legislatively-created policy. It is at this point that it becomes clearer what Silverstein has in mind when he refers to the “risks” associated with juridification. Judicial decisions in a given policy area can foreclose future options or entrench current choices to a greater extent than legislative decisions. At the same time, Silverstein recalls to the reader that there are upshots to juridification, not the least of which is that pursuing juridification may be a more expedient method to achieve some, if limited, success.
In Chapters 4 through 9, Silverstein embarks on detailed case studies of several notable policies that have been juridified, to demonstrate the process by which juridification takes place and its consequences. I will not go into great detail discussing his case studies except to note that he demonstrates a strong command of the historical record. In addition, the various case studies, covering abortion, environmental regulation, campaign finance, the separation of powers, presidential war powers, and tobacco regulation, both offer interesting and compelling accounts of substantively important policies and provide useful insights into how the various processes of juridification play out. These chapters are very compelling by themselves.
In the Conclusion, Silverstein steps back to reflect on the implications of his argument, the broader questions touched on, and the issues left unresolved. Law, he claims, is different because it is both a fast way to achieve policy goals and a mythic, special form of policy. While there are risks associated with juridification (Silverstein seems to have a narrow definition in mind, though the term is used broadly), juridification can help break through political barriers otherwise insurmountable. The trick, Silverstein notes, is in finding the right time to “juridify” and the proper balance of judicial policy-making and legislative (or executive) policy-making.
In the end, Silverstein’s analysis lays fruitful groundwork from which future research will surely build. Numerous questions are raised by his claims and argument. One question that readily jumps to mind is: Can we more fully define the institutional differences between courts and other institutions? Silverstein argues that deconstructive policy-making can take place when the courts and other actors are either ideologically misaligned or when they view policy issues differently. This raises an interesting question – in what ways do different institutions approach policy issues in different ways? How do those differential views affect their policy-making choices? Answers to these questions seem crucial to understanding precisely what institutional differences give rise to deconstructive policy-making. Numerous other questions abound, which I think is a testament to the provocative qualities of Silverstein’s study. I look forward to the future research that will extend and build upon [*655] the very interesting claims and insights offered in this book.
BAKER v. CARR, 369 U.S. 186 (1962).
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
GIDEON v. WAINWRIGHT, 372 U.S. 335 (1963).
© Copyright 2009 by the author, Tom S. Clark.