Reviewed by J. Mitchell Pickerill, Department of Political Science, Northern Illinois University. Email: Pick [at] NIU.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 is an ambitious effort to trace the evolving relationship between the writ of habeas corpus and politics over the entire history of the United States. While ambitious in scope, the book is well researched, and I learned much about the writ of habeas corpus that I did not know. As an organizing framework, Wert draws on the political regimes literature to analyze the relationship between developments in political institutions and developments on the U.S. Supreme Court regarding the protections of habeas corpus. That history shows that the scope of and protections afforded by the writ have been largely shaped by political forces within and across political regimes, and it has not always lived up to its billing as the “great writ.” Nonetheless, Wert concludes that over time the Court has had some success in guarding its own institutional prerogative over the writ to protect individual rights, making it “good writ,” even if it hasn’t lived up to its billing as the great writ.
At the outset, I commend Wert’s treatment of the political regimes literature. He provides us with a sophisticated understanding of regimes models. First, he quite reasonably posits that consistent with studies of other areas of the law, we should not view habeas as simply a counter majoritarian legal device that courts use as a sword against the elected branches. Its history, he tells us, demonstrates that in large part it has been shaped by the prevailing political winds and related forces of specific historic periods, and indeed by the particular political regimes within which the court has operated over time. But second, Wert emphasizes that with the regimes framework, the Court is not simply an agent of political majority coalitions. Throughout history it has managed to preserve its independence, has not acted lock-step with the political branches, and has independently “shaped the contours of habeas in important ways” (p.15). Utilizing the regimes approach, Wert tells us, helps to understand that the development and changing parameters of habeas are not best understood by breaking out “ordinary” uses of the writ from “extraordinary” uses, as legal academics often do. As a side note, the extraordinary versus ordinary distinction was indeed how I learned to think of habeas corpus as a young law student a long, long time ago in a galaxy far, far away, and I think Wert is successful in dispelling that characterization here.
Wert’s discussion of the Court and political regimes properly characterizes the Supreme Court as nonmajoritarian [*246] instead of countermajoritarian (p.16). In other words, the fact that scholars have recognized that the Supreme Court and the power of judicial review are not countermajoritarian does not mean that the converse is true. I highlight this point not only because is consequential for our understanding of the Court and judicial review, but I have reviewed a number of manuscripts that in essence treat the regimes framework simplistically and in purely Dahlian terms without either understanding any number of insights historical institutional and political regimes scholars have brought to bear on the subject matter at hand. Anyone tempted to reduce the literature to a simple Dahlian type Principal-Agent model should read Wert’s opening chapter. One of chief theoretical contributions of the book is to highlight how and why the Court acts with independence in some instances while avoiding disrupting the core agendas of elected officials more generally.
The book’s history of habeas corpus thus shows quite persuasively that at times the Court’s habeas decisions are best understood as being in the interests of elected elites, while at the same time protective of judicial power and the Court’s own interests. Wert deftly shows that the development of habeas jurisprudence in the Warren Court cannot be adequately explained by the “Whiggish” legal account that essentially argues that the Warren Court’s expansion of habeas protections was in fulfillment of the promise the “great writ” was always supposed to serve. (pp.21, 31-32; see Chapter Four for the detailed analysis of developments in the Warren Court). He illustrates, for example, that habeas has not always been used to secure liberty – or at least our modern understanding of liberty. In the antebellum period, for instance, northern states used habeas petitions in state courts to try to protect the liberty of escaped slaves while petitions for the writ were used with much success in federal courts to protect the property rights of the owners of fugitive slaves (p.30).
In addition, the political use of habeas in pursuit of short term political interests has frequently resulted in unintended consequences. So in Adelman v. Booth (1859), the Supreme Court declared that states could not “contravene” federal habeas writs that were used on behalf of slaveholders and their agents to retrieve fugitive or escaped slaves (pp.64-70). But Wert points out that this precedent would ultimately be used by congressional Republicans “to establish broad federal habeas power over state governments during Reconstruction” (p.30).
In brief then, habeas has almost always been politically constructed, so that by the time we get to the Warren Court, expansions of habeas protections are better explained as occurring during a period in which most of the justices on the Court shared the constitutional vision of the New Deal Regime in support of the Great Society platform, and not as the Court achieving the promise that was always the inherent, if dormant, purpose of the writ. And while the Burger and Rehnquist Courts had some success in implementing the New Right Regime’s commitment to limiting habeas and retreating from some of the Warren Court’s precedents, the Court, consistent with the Court in previous historical periods, refused to concede the power to the other branches. In fact, despite having a majority of conservative justices appointed by Republican [*247] presidents, the Court refused to give into the Bush administration’s attempt to curtail habeas protections in a number of enemy combatant and war on terrorism detainee cases.
There is much to like in this book and I highly recommend it to anyone interested in habeas corpus specifically, or the role of the Supreme Court in the U.S. political system and constitutional development more generally. In the spirit of the author meets critics panel from which this review originates, I offer a few critiques. My critiques really amount to more of minor quibbles and perhaps a short wish list of items I think could have been added to the book.
To begin with, there are several places in the book where the author seems to want to have it both ways for some of his claims. For example, he states that “the fact remains that even the earliest American political regimes … never hesitated to choose constructions of habeas that were more acceptable to short-term political consideration than to long-term abstract concepts of constitutional law” (p.32). Later, Wert applies that general claim to President Lincoln’s actions regarding habeas during the Civil War and the Merryman case in particular. He argues that Lincolns actions suspending habeas corpus are “best understood not as isolated examples of the more theoretical issue in presidential war power and their effects on civil liberties, but rather products of political and judicial processes that had been policy during the past two decades” (p.83). Yet, a short while later Wert concludes that “Lincoln’s seemingly extraordinary action were as much products of the Republican Party’s extant conceptions of departmentalism as they were the exigencies of war” (p.116). So one might wonder, which was it? The short term interests of the Lincoln administration in executing the war or the Republican Party’s conception of departmentalism, which would be, I think, properly understood as an “abstract concept of constitutional law.” I suspect Wert appreciates that the explanation cannot be truly answered by an either-or question, and that Lincoln’s broader and more theoretical commitment to departmentalism, while sincere in itself, was also related to many short term goals he may have had. Nonetheless, the book might have taken this opportunity to explore the interaction of short term political motivations with broader normative commitments to particular constitutional values.
Related to the preceding point, in reading Wert’s account of Lincoln’s treatment of habeas, I was left to wonder whether it might matter that Lincoln was a reconstructive president in Stephen Skowronek’s scheme of political time. Given that the respective powers of Presidents and the Supreme Court vary over the course of political time within each regime (Skowronek 1997 and Whittington 2007 respectively), it seems plausible that Lincoln and other reconstructive presidents have had different effects on the developments chronicled in the book both - within and across regimes - than other presidents.
Throughout the book, Wert emphasizes that the development of habeas did not follow the “linear” and “Whiggish” account that characterizes the conventional wisdom that, at least among lawyers and legal scholars, the modern legal protections of the writ grew slowly and consistently through the (legal) history of the U.S. He is surely [*248] correct that the legal developments did not development in a strict linear path in the statistical sense in which social scientists usually use “linear.” I think the use of the term may be a little misleading, however. As I read the book, I could envision a timeline that shows a close relationship between political and partisan developments and developments in the U.S. Supreme Court regarding the scope of habeas corpus protection. Over time, at least at a macro level, the scope of habeas protections gradually grew, the Court’s role in enforcing habeas grew, and Supreme Court grew ever more reticent in protecting its institutional powers to hear habeas cases. To be sure, the major developments were often punctuated at key times, but there is a trajectory or path that can be traced when the legal developments are placed on the same continuum as major political developments within regimes. To these ends, I think it might have been helpful in the book to provide a graphic that could highlight those connections between law and politics.
Among its several contributions, this book helps to highlight what many sociolegal scholars have long known – that the law and politics distinction is a false dichotomy. But perhaps more importantly, it also reminds us that while they are related, law and politics are not synonymous (see e.g., Pickerill 2011). For this reason, more students of judicial behavior should pay attention to historical institutional scholarship like Wert’s book when conceptualizing and operationalizing the judicial attitudes they believe shape judicial decision making. While judicial decision making is a political activity, it is not identical to other types of political decision making.
Despite some minor quibbles, I highly recommend the book to anyone interested in habeas corpus or the U.S. Supreme Court particularly, or constitutional law and American political development more generally. Wert makes several important contributions to these fields. He provides and applies a sophisticated understanding of the political regimes framework, in which the court is best understood as a nonmajoritarian institution rather than either a counter majoritarian institution or as an agent of the majority. The book helps to flesh out the relationship between the Supreme Court and other institutions within and across political regimes. Moreover, this book adds some much-needed insights into our understanding of how Court and why the Court can maintain institutional independence in a system in which it has fundamental and strong ties to other political institutions. Finally, the book adds to our understanding of how law and politics can be closely related without being one in the same.
Pickerill, J. Mitchell. 2011. “Law, Politics and Democracy in the Twenty-first Century.” Perspectives on Politics 9(2): 357-362.
Skowronek, Stephen. 1997. The Politics Presidents Make: Leadership from John Adams to Bill Clinton. Cambridge: The Belknap Press of Harvard University Press.
Whittington, Keith E. 2007. The Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court and Constitutional Leadership in U.S. History. Princeton: Princeton University Press.[*249]
Abelman v. Booth 62 U.S. 506 (1859).
Ex Parte Merryman 17 F. Cas. 144 (1861).
Copyright 2012 by the Author, Mitchell J. Pickerill.