Reviewed by Ronald Kahn, Department of Politics, Oberlin College. Email: Ronald.Kahn [at] Oberlin.edu.
editor’s note: Justin Wert's Habeas Corpus and the Politics of Individual Rights was the subject of an "Author Meets Critics" roundtable at the 2012 Midwest Political Science Association Meeting. This review is drawn from remarks prepared for that panel.
Justin Wert has written a creative and disciplined book using what he calls “the regime perspective” to explore the development of the writ of habeas corpus in the United States, with an emphasis on explaining changes in the protection of individual rights in the many doctrinal areas that the writ can impact. This book is a superb, well written, and needed contribution to our knowledge of the writ of habeas corpus and American political development. Wert describes his book as moving “beyond … legal and court-centered analyses … to make better sense of the important role that habeas has played in American constitutional, political, and legal development by detailing habeas’s consistently and overwhelmingly political role in American constitutional development … [and to] show how habeas has served as a potent tool of political regime change, enforcement, and dissolution in American politics” (p.2). In so doing Wert transforms the study of the “Great Writ” from what many scholars view as a subject of legalist analysis, or what the Supreme Court and lesser courts have done, into an analysis of how changing political regimes impact the development of the writ procedurally and the rights protected under it.
In so doing, we get a better sense of what some scholars call the counter-majoritarian difficulty, or what Graber has more astutely called the nonmajoritarian difficulty of the Supreme Court. Wert also argues that the “Great Writ,” as the writ of habeas corpus as been called, has not always been at the vanguard of protecting individual rights.
My concern here is with how the regime perspective has been used generally as an explanation of doctrinal change, particularly with regard to the development of individual rights. First, scholars of the regime perspective differ widely as to the identifiers of regime and regime change. These include: majority coalition; actions of specific institutions, such as the President, Congress, or political parties; electoral realignments; public opinion; the efforts of legal advocacy groups; or responses to events outside the Court.
I note that the explanation for doctrinal change is always and primarily external to the Supreme Court. The Supreme Court or lesser courts are seen as reacting to external factors. In this sense, regime explanations are not much different from explanations for Court outcomes that attitudinal behavioral political scientists emphasize – the explanations being the attitudes and policy proclivities of justices before they came to the Court as a reflection of the policies and values of the presidents who appointed them.
Moreover, when the Court does not respond positively to regime wants, this is usually viewed as an outlier, not the usual condition of Court-political system interactions. When the Court says no to Presidents or Congress, or acts counter to the desires of the majority coalition – or parts of a complicated majority coalition as Graber suggests – these moments are labeled as refreshing or unusual or not significant to key interests of the majority coalition, as differentially defined. At this point, the search is for either a more complicated regime (external) explanation for Court behavior or some general quality of the Supreme Court as an institution.
For example, Wert argues, “the dominant forces of the political regime may indeed exert a measurable influence on institutions such as the Supreme Court, but the unique institutional role of the judiciary – and of the justices themselves – mitigates any claim that the influence is complete” (p. 18). Wert notes that despite various regimes placing statutory restrictions on habeas jurisdiction of state prisoners over the years, the institutional power to issue such writs has increased in the aggregate (p.18). However, he argues that while the Supreme Court has issued writs procedurally, the writ’s substantive content has been reduced, thus justifying the theory that the Court follows the regime thesis.
Moreover, Wert says he rejects that the Court follows election returns by noting that the Burger and Rehnquist Courts did not dismantle the expanded procedural and substantive changes to habeas that had been created during the Warren Court, instead jettisoning only some changes. The major cause of this, for Wert, is that the Court will not work with political regimes or dominant national coalitions when its conceptions of habeas would ultimately divest it of the habeas power completely. However, the Court is viewed as serving regimes when they seek to enlarge or decrease the substantive rights that are enforced through habeas. Therefore, the Court follows regimes when the real questions of individual rights are at issue, and thus, the Court really does follow politics.
Regime analysis places a foot on the scale for explaining doctrinal change through external factors. It is one-directional from the outside in: Change is assumed to be from external to the Court to inside the Court, not in the other direction.
One needs to view Court decision-making as bi-directional between the internal polity and rights principles and social constructions of what these principles meant in prior cases as compared with the principles and social constructions at the time the Court is deciding the case. The relationship between polity and rights principles needs to be explored through case analysis, rather than emphasizing the polity principle, institutional interests of the Court, as the explanation of why the Supreme Court rejects regime interests.
The external should be viewed through the comparison of, on the one hand, rights principles (such as liberty and equal protection) past and present and the social constructions in application of those principles past and present, and, on the other hand, what those principles and their application should be in the future. For example, when the Supreme Court in Planned Parenthood of Southeastern Pa. v. Casey speaks to what liberty means past and present and talks of the importance of citizen reliance and workability in deciding that Roe v. Wade (1973) should not be overturned, they are bringing an outside world into the Court at the level of the lived lives of citizens, not simply emphasizing the institutional interests of the Court. Most decidedly, the Court is rejecting the identifiers mentioned above that scholars of the regime perspective emphasize. We see a similar situation in the Supreme Court’s rejection of regime interests when it decides to expand gay rights in Romer v. Evans (1996) and Lawrence v. Texas (2003).
Finally, Wert argues for the importance of the impact of regime on changes in the substance and procedure of the writ of habeas corpus in the years before, during, and after the Civil War and in the Warren Court years. However, he finds that the Court did not follow regime guidance in the Burger and Rehnquist Court years. The identifiers of regime Wert employs do not explain why the Burger and Rehnquist Courts expanded the use of the writ. To answer this question, we need to use what I have called a bidirectional understanding of Supreme Court decision-making, in which both rights and polity considerations (such as Court legitimacy) need to be determined in their own right and in relation to each other. When we do this we will be better able to explain the conditions under which rights expand, as demonstrated in the Burger and Rehnquist Court years, in opposition to regime changes in those years – and perhaps why, even in periods explained by regime change, such as the Civil War and Warren Court years, the Court, at times, refuses to follow regime interests at key junctures.
Graber, Mark A. 1993. “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary.” Studies in American Political Development 7 (1): 35-73.
Kahn, Ronald. 2006. “Social Constructions, Supreme Court Reversals, and American Political Development: Lochner, Plessy, Bowers, but Not Roe” in Kahn, Ronald and Kenneth I. Kersch, Eds. The Supreme Court and American Political Development. Lawrence: University Press of Kansas: 67-113.CASES CITED
Lawrence v. Texas 539 U.S. 558 (2003).
Planned Parenthood of Southeastern Pa. v. Casey 505 U.S. 833 (1992).
Roe v. Wade 410 U.S. 113 (1973).
Romer v. Evans 517 U.S. 620 (1996).
Copyright 2012 by the Author, Ronald Kahn.