Reviewed by Paul Chen, Department of Political Science, Western Washington University. Email: paul.chen [at] wwu.edu.
In Merely Judgment: Ignoring, Evading, And Trumping The Supreme Court, Martin Sweet makes valuable empirical and theoretical contributions to the literature on studies affirming the “yawning gap” between judicial rulings and their real-world impact. He finds that judicial impact, though “not impossible,” is “highly contingent and subject to contest” (p.168). Based on his findings, Sweet proposes a normative solution to try to narrow this gap between “law as written and law as practiced” (p.175), or using the familiar law-and-society dichotomy, law-on-the-books and law-in-action.
Sweet’s empirical contribution extends the gap studies literature by focusing “not on the variation in impact between cases … but instead on the variation in impact of a single case.” He focuses on the legislative fallout in three cities following the Supreme Court’s affirmative action (AA) ruling in City Of Richmond v. J.A. Croson Co. (1989), which specifically dealt with the constitutionality of Minority Business Enterprises (MBEs). His case studies of Philadelphia, Portland, and Miami show that a case’s impact “may not be uniform across the country” (p. 16).
Sweet’s theoretical contribution seeks to solve a puzzle: namely, how can unconstitutional and constitutionally suspect MBE programs continue in the face of uniformly hostile rulings from the courts? He shows that unconstitutional laws stay on the books because cities use a variety of “checkmate moves” to preempt plaintiffs from filing lawsuits to challenge unconstitutional policies.
Sweet argues that the persistence of unconstitutional laws and policies harms those whose rights are curtailed based on those laws, even after those laws have been declared invalid by courts. To remedy this, Sweet advocates that courts adopt an approach to constitutional interpretation that he calls “judicial primacy.” Judicial primacy takes a middle-ground approach to, on the one hand, coordinate construction (the view that courts’ interpretations of the Constitution are no better or worse than that of other branches) and, on the other, judicial supremacy (the view that courts’ interpretations of the Constitution ought to trump any competing interpretations by other actors or institutions).
After the Introduction, Chapter 1 provides overviews of the policy debates surrounding AA and the constitutional doctrines involved in the Supreme Court’s AA rulings. Sweet then discusses the Croson opinion in detail and the case’s significance for AA programs (pp.36-44), and finally reviews major post-Croson AA cases (pp.44-52). [*110]
At the end of Chapter 1, and in a few other places in the book, Sweet shares a number of counter-intuitive findings regarding the impact of MBEs, including the following: (1) “[t]here is no significant association between the growth of black-owned business and the existence of affirmative action programs” (p.56); (2) “there is little evidence that MBE programs increase black or Hispanic employment” (p.56); (3) studies show that while MBE programs were in operation, disparities between black- and white-owned businesses increased (p.122); and (4) studies suggested that, on average, 20-25 percent of all MBEs were “fronts” or “shams” through which individuals gained some personal benefit (p.122). Sweet also notes that, while claims about the positive impact of MBEs are “very tentative,” “the vast majority of the literature is less sanguine” (pp.122-123).
In Chapters 2-4, where Sweet presents his case studies of Philadelphia, Portland, and Miami, respectively, he “examines three different city-level responses to the Supreme Court’s Crosndecision ‘ending’ affirmative action.” In each chapter, Sweet first gives the historical-political context surrounding the city’s MBE program, in which he identifies the parties involved and the policies and interests at stake. He summarizes the cities’ responses as follows: “Philadelphia maintained its program and unsuccessfully faced litigation, Portland created a new affirmative action program but avoided litigation by co-opting the leading opposition interest group, and Miami maintained its program on paper but avoided litigation by bureaucratically gutting the program and not creating standing for an opposed individual or group” (p.23).
In Chapter 5, “Beyond Affirmative Action,” Sweet discusses briefly four other policy areas – hate speech, flag burning, prayer in public schools, and legislative vetoes – where local governments have also used checkmate moves to prevent the abolition of unconstitutional and constitutionally suspect laws or policies. In his final chapter, Sweet summarizes his empirical and theoretical findings and then, in the final pages of his book (pp.173-174), lays out the steps to implementing his normative proposal that courts adopt judicial primacy, an approach to constitutional interpretation intended to give courts a stronger voice in constitutional dialogues involving individual rights.
I should point out that, although my review largely forgoes summarizing the in-depth studies of the personalities and politics that are at the heart of Sweet’s case studies, this information, much of it culled from in-depth interviews, is a key part of Sweet’s empirical contribution to the judicial impact literature. His case studies give rich detail on “how courts, legislatures, and executives responded to judicial decisions – and how different branches of the government play the judicial–elected branch games [and] employed checkmate moves [such as] raising the cost of litigation, pay-to-play schemes, interest group co-option, bureaucratic nonimplementation, and symbolic politics” (p.27). The remainder of my review, however, will focus on Sweet’s theoretical and normative arguments. [*111]
Sweet’s theoretical contribution is his examination of how cities use checkmate moves, i.e. “social, legal, or political impediments to litigation,” to prevent courts from eradicating via judicial review unconstitutional or constitutionally suspect laws or policies (pp.5, 9). Because courts can only act in response to lawsuits, which Sweet eloquently describes as “the quintessential connection between constitutional impropriety and constitutional remedy,” an unconstitutional law can stay on the books until a plaintiff challenges it in a lawsuit (p.4). But in the face of consistent judicial rulings declaring MBE programs unequivocally unconstitutional, Sweet wondered, “Where were the lawsuits?” (p.4).
While the Framers of the Constitution and scholars of constitutional-dialogue theory assume that courts can be “conversation stoppers” because of judicial review, Sweet shows that “stoppages … also come from the elected branches,” and the “lack of lawsuits is evidence that the courts are stymied on their side of the conversation” (p.8). It is somewhat “misleading,” then, to conceptualize interactions between the elected branches and courts as a dialogue (p.17).
In each case study, Sweet describes how cities use checkmate moves to preempt plaintiffs from bringing lawsuits to challenge the city’s constitutionally suspect MBE program. He finds that an adverse judicial ruling “does not neatly clear the underbrush of unconstitutional laws from around the country but rather ignites a firestorm of policy reactions to the decision” (p.4).
Sweet identifies three kinds of checkmate moves that act as barriers to plaintiffs’ filing lawsuits. Social barriers refer to the “dearth of social conditions conducive to litigation,” and are basically due to plaintiffs’ lack of knowledge. Plaintiffs may not even know about the existence of the government’s policy or action, or that such policy or action is unconstitutional. And even if plaintiffs thought it reasonable to pursue legal action to vindicate a right, they might still forgo filing a lawsuit out of fear of backlash (pp.158-159). Next are legal barriers, which include the need to satisfy legal-procedural requirements (e.g. jurisdiction, standing, justiciability), legal-doctrinal requirements (e.g. in the area of MBE programs, conducting a disparity study), and other logistical hurdles (e.g., hiring an attorney, paying court fees) (pp.159-162). Finally, political barriers refer to the ways in which governments can make pursuing legal redress for a constitutional wrong “irrational,” mainly by making the costs of engaging in such action significantly higher than the potential benefits of litigation (pp.21-22).
Sweet argues that unconstitutional laws that stay on the books are not merely “stupid but ultimately harmless.” On the contrary, their harm lies in serving as a source of ostensible authority for governments to harass or coerce citizens into curtailing their rights (p.151). Even if many such laws do seem simply odd or ridiculous, Sweet reminds readers “not to discount the effect of law on behavior.” He notes that the potential harm from letting these unconstitutional laws stay on the books “vastly outweighs any remote benefit” (p.151). According to Sweet, “[c]heckmate imperils the [*112] entire premise by which our rights are protected” (p.154).
To remedy this problem, he argues that “the Court must be accorded a preeminent position in the interpretation of individual rights” (p.25) by adopting a judicial primacy approach to constitutional interpretation. Sweet’s rationale is that “[r]ights are, by design, different from statutory privileges, both in terms of supermajoritarian procedural requirements for amendment and in terms of their very nature,” and therefore warrant special treatment by having other institutions defer to courts’ rulings in those areas (p.26).
At the very end of his book (pp.173-174), Sweet lays out the steps to implementing his normative proposal. When a plaintiff challenges a constitutionally suspect law or policy, rather than have the court determine whether the law can survive strict scrutiny analysis, the court would instead impose a set schedule for the legislature to evaluate whether the law was achieving its stated legislative objectives (p.174). When upon revisiting the issue, if the legislature determined that the law had failed to achieve its ends, then the law would automatically be rescinded (p.174). Sweet notes that his proposal is not foreign to the Court’s current practice of requiring a sunset provision in AA programs (p.173).
Although Sweet’s work makes valuable empirical and theoretical contributions to the literature, I am at least somewhat skeptical of either the need for, or the efficacy of, his normative proposal. First, is judicial primacy needed? Sweet shows that the use of checkmate moves by legislatures to preempt lawsuits challenging unconstitutional laws “threatens constitutional dialogue, rendering the courts subservient to the elected branches” (p.167). In addition to his case studies, Sweet cites Pickerill (2004) showing that almost 40 percent of the time “Congress does nothing” in response to an adverse court ruling, and in only 45 percent of the cases does constitutional dialogue between Congress and the courts ensue (p.149).
But Sweet fails to explain why these data reveal a problem. If legislatures can preempt lawsuits and block dialogue with courts through checkmate moves, then a 60 percent rate at which Congress either engages in dialogue with the Court or else amends or repeals the law in response to a court ruling may sound pretty good.
Second, even if we grant the need for Sweet’s normative proposal – that courts adopt judicial primacy to more effectively protect individual rights – will it solve, or at least mitigate, the problem he identifies? There is a gap between Sweet’s normative proposal and his empirical findings: on the one hand, his research seeks to improve our understanding of law-in-action, which I believe he has done, by examining how locales use checkmate moves to entrench unconstitutional laws on the books; on the other hand, Sweet’s proposal to empower courts in rights litigation seems to belie his findings that the real problem lies not with the judges or courts, but outside of the courts. The solution then must come from the social or political arena, and not just (or even primarily) by giving judges a new legal device to invalidate unconstitutional laws. As Sweet cogently shows, [*113] courts can rule however they want, but their rulings must be implemented by extra-judicial actors over whom they have no control.
Finally, even if unconstitutional laws were to automatically sunset, I am not sure why those laws would be any less subject to potential abuse by street-level bureaucrats than the unconstitutional MBE programs that persisted in the face of adverse court rulings. Sweet’s proposal seems to change mainly the legal procedures after a lawsuit is filed, but does nothing to make it easier for plaintiffs to file a lawsuit. If the proposal made it easier for plaintiffs to bring cases against constitutional wrongdoers, as the Warren Court achieved by easing the requirements for legal standing, then the checkmate moves preempting the filing of lawsuits might themselves be preempted, removing the problem of legislative stoppage.
The title of Sweet’s book is apropos, drawn from Hamilton’s statement in Federalist 78 where, in juxtaposing the powers of the judiciary to those of the other branches on which courts must ultimately depend, he states: “The judiciary… has no influence over either the sword or the purse…. It [has] neither FORCE nor WILL, but merely judgment.” This is what Sweet’s work affirms and elucidates. But his normative proposal takes on a “legal insider” view that is more sanguine about the ability of the “law as written” to influence the “law as practiced” (p.175) and more naïve of the social and political realities that Sweet’s case studies highlight. He proffers a judicial solution to what seems to be, fundamentally, an extra-judicial problem.
Despite my skepticism of the need or efficacy of Sweet’s normative proposal – and it is always good to be reminded that it is easier to tear down than it is to build up – I highly recommend Merely Judgment to scholars and students who wish to better understand why the gap between law-on-the-books and law-in-action persists.
Hamilton, Alexander. Federalist 78.
Pickerill, J. Mitchell. 2004. Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System. Durham: Duke University Press.CASES CITED:
City of Richmond v. J.A. Croson Co. 488 U.S. 469 (1989).
© Copyright 2012 by the author, Paul Chen.