RECALIBRATING REFORM: THE LIMITS OF POLITICAL CHANGE

Vol. 26 No. 7 (November 2016) pp. 125-128

RECALIBRATING REFORM: THE LIMITS OF POLITICAL CHANGE, by Stuart Chinn. Cambridge: Cambridge University Press, 2014. 351 pp. Cloth/Paper $95.00. ISBN: 978-1-107-05753-1.

Reviewed by Miranda Yaver, Yale University. Email: miranda.yaver@yale.edu

Several decades of political science and legal scholarship has probed in various ways the forces shaping law and policy in the American separation of powers system, whether evaluating the congressional decisions of legislative design or the social forces shaping the rendering of legal judgments, to name just a couple of such strands of thought. These efforts have paved the way toward a deeper understanding of the ways in which inter-branch interactions shape the crafting of contemporary regulatory law and policy. Yet importantly, the modal analyses have emphasized the inputs of policy, largely (and sadly) to the exclusion of their ultimate implementation, a limitation that Stuart Chinn’s RECALIBRATING REFORM: THE LIMITS OF POLITICAL CHANGE crucially works to remedy.

Chinn raises important questions centered on the aftermath of legal reforms, and the dynamic processes that shape these reforms’ patterns and persistence. In doing so, he considers both the possibilities for major policy change and the limits on the reaches of those reforms. His study brings to light key oversights in the political science and legal literatures, which largely emphasize the initial disruptions and processes preceding policy changes, the details of whose precise formation and ultimate implementation we know far too little about. While some scholars (e.g., Hacker 2004) have sought to address the politics of retrenchment in recent decades, few have carried the policymaking story all the way through to understand the ultimate consequences of how policies are initially structured, how other institutions respond, and what policies emerge through those processes (however, see Patashnik 2008). This scarcity of scholarly attention leaves us unable to answer important questions such as to what extent, and under what conditions, institutions can carve out new rights in ways that will be more or less durable. Yet as Chinn notes, if Tocqueville was correct in viewing American law as being inherently conservative in nature, there is ample reason to suggest that attempted radical policy changes might in fact be tempered post-enactment (p. 5).

Of course, one prominent reason for this scarcity of scholarship is the sheer complexity of understanding properly the post-enactment processes that yield the substantive policy outcomes that we ultimately observe. Both the dynamic compositions of political preferences over time, as well as the institutional prerogatives of the branches for autonomy and influence, contribute toward potential disconnects between de jure law and the observable de facto policy. While interest groups may lobby persuasively and members of Congress may craft law with great ambition toward policy change, legal forces and a potential judicial predisposition toward stability may, as Chinn argues, limit the outer bounds of reforms as these policy changes are carried into effect. And given the challenges stemming from political uncertainty and the complexity inherent in American lawmaking, the relative inattention to these processes is indeed striking.

While scholars of law and American political development have provided important insights as to the processes contributing toward reform, Chinn argues persuasively for the need for greater care in understanding how these transformative moments in history have translated into new systems of governance in the American state. Chinn takes on this challenge with a rich attention to historical details, uncovering the institutional and legal settings conducive to sweeping versus narrow policy reforms taking hold.

The focus of Chinn’s inquiry is on a process that he labels recalibration, by which he means the processes that immediately follow major [*126] transformative legal and policy reforms. Such recalibration processes are how indeterminate reform principles become reshaped into new governing arrangements, and are a distinct phase of political development in which institutional actors shape concrete meaning from the more abstract reform principles at the outset of these movements toward policy change. The claim is that recalibration follows major reform for the following reasons: first, when reforms are enacted, they often establish principles that are framed in broad and open-ended terms, such that there is uncertainty with respect to how far those reform principles will intrude on existing rights; second, these reforms have the effect of disrupting and rearranging preexisting institutions and individual rights; and third, reformers often lack the foresight or political consensus to resolve all policymaking problems at the outset in reform, instead finding after a policy reform how much authority has been implicated by those open-ended reforms. Such recalibration processes are thus less likely to occur when policy reforms are more narrowly-tailored, given their lesser threat to preexisting rights and authorities as compared with reforms seeking to be more universal in their scope.

When those open-ended reforms prompt recalibration processes, there emerges an initial delimiting phase, followed by a phase of construction, and then the ultimate entrenchment of new governing arrangements. This delimiting phase is separated into two stages: first, the legislative stalemate over the scope of the reform, and second, the judicial delimitation of that reform in acts of judicial independence that offer definitive statements about the boundaries of those reforms. This clarification through the judiciary stems, Chinn argues, from the Supreme Court’s possession of an institutional interest in the promotion of stability. Chinn works throughout the book to understand the political processes that unfold after these shocks to the political system, and to evaluate the behavior of the political institutions at the core of these post-enactment implementation dynamics. Against the backdrop of scholarship that has questioned whether courts can in fact be effective producers of social change (Rosenberg 1991), while hardly painting a picture of a judiciary that is propelling the initial policy changes, Chinn provides a number of reasons why – although with the aim of promoting stability as opposed to change – the courts have been highly effective in shaping the ultimate reach of these reforms set in motion by other institutional actors.

To test his core hypotheses, Chinn evaluates qualitatively three key moments in American history: the maintenance of Jim Crow in the Reconstruction period, labor relations with the passage of the Wagner Act, and, amid civil rights reforms, the adoption of the anticlassification understanding of equal protection. Attached to each of these three reforms was momentous political significance, with the attempted rearrangements of governing arrangements and individual rights, and the marking of critical junctures in American history. Moreover, each case represents a judicial limitation that established an outer boundary to the scope of earlier reforms, thus foreclosing more expansive future policy changes. That said, given the close ties to federalism in the cases of Reconstruction as well as anticlassification principles, there remain questions as to the extent of variation among these cases. However, the inclusion of labor policy does allow the author to test the breadth of his theoretical argument, extending beyond the domain of race relations. Such cases provide important insights into the legal dynamics at the heart of policymaking in labor and civil rights over a long span of American history, though there are reasons to consider the implications of a study emphasizing so squarely a subset of policies in which the judiciary has held such a significant and striking role in shaping the trajectory of policy change (see, e.g., Frymer 2003).

An additional contribution that Chinn’s work makes is its more nuanced treatment of judicial cases than does the extant literature, which considers judicial upholding or overturning of cases, and not the more precise nature of the decisions rendered. That is, while it is a rare event that laws are overturned outright – just as it is a rare event that a policy is repealed outright – it is not a rare event that the reach of those policies is expanded or constrained in ways [*127] difficult to measure empirically but important to understand as we evaluate policy outcomes over time. More scholars would do well to consider these legal and political trajectories so closely.

These novel analyses notwithstanding, some important questions arise from Chinn’s evaluation of the Supreme Court’s responses to reform efforts. The importance of judicial ideology – as well as the broader strategic environment in which the Court operates – is largely overlooked in his treatment of these inter-branch interactions in the aftermath of policy reform. While he evaluates the appointments hypothesis – and indeed, concedes that the strongest support for it is found in the case of constitutional equal protection – he concludes largely that it does not explain his findings of judicial efforts at recalibration and delimitation given the patterns of voting alignments and changes to the Supreme Court’s composition that he observes during the periods that he evaluates.

Yet there are important reasons why we might want to consider how judicial ideology might in fact be quite relevant, albeit in a less transparent manner. First, the Supreme Court has a discretionary docket and thus decides itself whether to take on issues pertaining to the given reforms on which it focuses its attention. Second, the cases that are appealed to the Court are done so strategically, further affecting the inferences we can draw from the judiciary’s role in defining the boundaries of reforms. And third, bargaining processes on the Court can have the effects of tempering the policy put forth in order to buy support of a larger coalition, thus impacting both the scope of the judicial delimitation as well as the composition of justices voting in its favor. Indeed, a prominent example case to which Chinn appeals in the context of desegregation is MILLIKEN V. BRADLEY (1974), which was a 5-4 ruling with five separate opinions authored, calling into question to what extent there was in fact unitary judicial action toward delimitation. It is not always clear in what direction these judicial ideology dynamics bias the findings in the three cases, but they are important considerations in understanding the driving forces behind the Court’s articulation of the outer boundaries of reforms. To be sure, these constraints are highly characteristic of studies of judicial politics in the separation of powers setting, but in subsequent analyses on this trajectory of work, the author may do well to further confront these challenges and consider ways in which to better address them.
A number of interesting and potentially fruitful avenues of inquiry can emerge from Chinn’s novel and thought-provoking analysis. While Chinn’s rich qualitative assessment of these processes span a long time horizon in both race and labor relations, there remains ample room to explore systematically, with larger-scale data the development of policy reforms and the extent to which recalibration reforms do (or do not) follow in their footsteps. For example, to what extent, if at all, might these patterns differ within the context of economic as opposed to social policy? Are there prominent examples of cases in which we might have expected to observe recalibration processes but ultimately do not, and if so, what explains the variation in the extent to which these theories hold? How do judicial efforts at delimitation shape coalitions’ future policy reform efforts – and in turn, future opportunities for the judiciary in these processes?

Evaluating inter-branch conflict over policy carries with it a number of complications with respect to strategic interactions and changing preferences over policy. Yet Chinn manages, in RECALIBRATING REFORM, to propel the literature forward in important ways, forcing us to think more closely at the consequences of how policies are designed, and the ways in which institutional actors work to continue to shape the scope and governance of those reforms.

REFERENCES:

Frymer, Paul. 2003. “Acting When Elected Officials Won’t: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935-85.” American Political Science Review 97(3): 483-99.

Hacker, Jacob S. 2004. “Privatizing Risk without Privatizing the Welfare State: The [*128] Hidden Politics of Social Policy Retrenchment in the United States.” American Political Science Review 98(2): 243-60.

Patashnik, Eric M. 2008. Reforms at Risk: What Happens After Major Policy Changes Are Enacted. Princeton, NJ: Princeton University Press.

Rosenburg, Gerald. 1991. The Hollow Hope: Can Courts Bring About Social Change? Chicago, IL: University of Chicago Press.


CASE REFERENCES:

MILLIKEN V. BRADLEY, 418 U.S. 717 (1974)

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© Copyright 2016 by author, Miranda Yaver.