Reviewed by Thomas M. Keck, Maxwell School of Citizenship & Public Affairs, Syracuse University. tmkeck [at ] maxwell.syr.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’s Habeas Corpus in America surveys an important topic that has not generally garnered much attention from political scientists. It does so in comprehensive fashion, and I learned a great deal from reading it. It sometimes gets a bit caught up in the weeds – in particular, providing too much doctrinal detail and not enough examination of the political contexts in which Wert wants to situate those details – but this failing is not uncommon with first books (see, e.g., Keck 2004).
Wert’s principal argument is that habeas law has been profoundly shaped by partisan political developments, but that federal judges have at key moments acted on the basis of institutional as well as partisan commitments. Drawing on examples from the full course of American constitutional history, Wert effectively argues that “[l]arge-scale habeas change and development are almost always attributable to the creation and enforcement of new visions of constitutional governance by new political regimes” (p.105). But he repeatedly emphasizes that when elected lawmakers have tried to constrain habeas procedures so strictly as to undermine basic principles of due process, the courts have invariably pushed back.
Wert canvasses a wide range of historical episodes, both familiar and unfamiliar, in support of this argument. In the unfamiliar department, he details the widespread use of the writ by antebellum slave holders to force the return of fugitive slaves, a story he uses to complicate conventional celebratory accounts of the “great writ.” After that, most of the key episodes are well-known, at least to scholars of constitutional development. President Lincoln unilaterally suspended the writ during the Civil War, but this action may well have been justified by the enormity of the military crisis on American soil and by the fact that Congress subsequently endorsed the president’s policies. Congressional Republicans suspended the writ during Reconstruction, but once again, this action may have been justified by the prospect of white southern redemption. The FDR administration faced enormous security challenges during WWII, but may well have over-reacted in its treatment of Nazi saboteurs on the east coast and Japanese American civilians on the west coast. The Warren Court expanded the writ’s reach in an effort to bring southern criminal justice systems into line with national standards, and the Reagan/Bush administrations subsequently led the Court in pulling back from this expansion. Despite my general familiarity with these key developments, I was repeatedly struck by Wert’s original readings of them. For example, his claim that “the use of habeas during war [has] largely [been] determined by the use of the writ immediately before the crisis” (p.xi) runs counter to most existing treatments, but nonetheless strikes me as quite correct.[*243]
While changes in the reach and purposes of habeas corpus are “political in their origins,” Wert notes that they must always be “adjudicated in a legal world,” and he emphasizes that this fact creates the potential for habeas enforcement to diverge from regime interests over time (p.105). In particular, early twentieth-century habeas decisions were reflections of an institutional reaction against egregious due process violations, particularly but not exclusively in the South. As Wert emphasizes, these violations got so bad that the Court’s very mission would have been called into question if it had not responded. Likewise during WWII, the Court “partly crafted its wartime habeas jurisprudence with its own institutional concerns and duties in mind.” The Court “was willing to countenance racial influences” in the Japanese internment cases, but “it was not willing to condone habeas’s suspension” altogether in Hawaii, where martial law had been declared in the wake of Pearl Harbor. The upshot is that “[s]ympathetic Courts, even during war or crisis, will still only go so far in supporting regimes with which they are allied. When the legitimacy of the judicial institution is threatened at its core – when its most basic powers of review are in doubt – the Court will draw a line of judicial independence in the political sand” (pp.140-141).
Even for the period with which I am most familiar, the Burger, Rehnquist, and Roberts eras on the modern Supreme Court, I learned a lot from this account, as Wert effectively situates familiar legal developments into a broader story about habeas’s evolution over time. Herrera v. Collins (1993) is an infamous decision, which I have discussed in class many times, but I was unaware of the extent to which it represented the culmination of a long effort by William Rehnquist – dating to his years in the Nixon administration – to limit the use of habeas by state prisoners on death row. Likewise, I think I understand the gist of the Anti-terrorism and Effective Death Penalty Act, signed by President Clinton in 1996, but I did not know that it bore such striking similarities to Reagan-era OLC opinions. And while I have taught the leading post-9/11 cases on the rights of enemy combatants every year since 2001, Wert’s account was nonetheless fresh. On Boumediene v. Bush (2008), in particular, his account is the best I have read. Here, as with the earlier periods that Wert canvasses, he emphasizes the competing pulls of partisan loyalty and institutional mission on the justices. The Burger, Rehnquist, and Roberts Courts adopted many of “the Republican regime’s larger theories of habeas review from both the legal academy and the Reagan administration’s Justice Department, but [they] never adopted – or ever seriously considered – the administration’s preferred choice of the complete elimination of federal habeas review” (p.197).
Here lies the major contribution of the book. The literature on regime politics and the courts has been struggling to articulate the conditions under which judges act as agents of partisan regimes and, conversely, the conditions under which they are sometimes willing to challenge regime interests. I am on record as criticizing the existing literature for over-emphasizing the former and neglecting the latter (Keck 2007), but Wert’s book is one of a number of recent studies that have made important progress in this regard.
As I see it, this literature has begun to pay more attention to three significant aspects of the relationship between the Court and the broader political environment that were sometimes underemphasized in earlier accounts. First, as Wert notes, the justices’ pursuit of regime commitments is sometimes checked by (or at least complicated by) their institutional commitments – that is, their investments in particular legal ideas or conceptions of the judicial role that are not broadly shared by other regime actors. Second, as Pamela Brandwein (2011) has recently emphasized, key conflicts on the Supreme Court [*244] sometimes reflect important divisions within the governing coalition. So while it is true that the Court’s key holdings will usually be consistent with regime commitments, that fact will sometimes be the least interesting thing about them. Within this realm of regime-consistent holdings, the outcomes of some key decisions will still be uncertain and the political and legal stakes of these decisions will sometimes be high. Third, the causal arrows between the Court and the broader political environment run in both directions. As Brandwein, Richard Vallely (2004, pp.99-120), and Desmond King and Rogers Smith (2011, pp.57-58) have all noted, for example, the post-Reconstruction Court’s holdings on race significantly altered subsequent patterns of partisan conflict and policy development.
Wert recognizes this last point, arguing both that habeas law has been broadly shaped by external political developments and that those political developments have been shaped by habeas law in turn. But he devotes significantly more attention to the former set of causal arrows than to the latter. As the regime politics account continues to develop, I urge its adherents to devote as much attention to the Court’s impact on political development as they have devoted to the reverse.
Brandwein, Pamela. 2011. Rethinking the Judicial Settlement of Reconstruction. New York: Cambridge University Press.
Keck, Thomas M. 2004. The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. Chicago: University of Chicago Press.
______. 2007. “Party Politics or Judicial Independence: The Regime Politics Literature Hits the Law Schools” (review essay). Law and Social Inquiry 32:2 (Spring 2007): 511-544.
King, Desmond S., and Rogers M. Smith. 2011. Still a House Divided: Race and Politics in Obama’s America. Princeton: Princeton University Press.
Vallely, Richard. 2004. The Two Reconstructions: The Struggle for Black Enfranchisement. Chicago: University of Chicago Press.CASES CITED
Boumedienne v. Bush 553 U.S. 723 (2008).
Herrera v. Collins 506 U.S. 390 (1993).
Copyright 2012 by the Author, Thomas M. Keck.