THE REALITIES OF REDISTRICTING: FOLLOWING THE RULES AND LIMITING GERRYMANDERING IN STATE LEGISLATIVE REDISTRICTING

by Jonathan Winburn. Lanham, MD: Lexington Books, 2008. 258pp. Hardcover. $65.00. ISBN: 9780739121856.

Reviewed by Gary E. Bugh, Department of Political Science, Texas A&M University-Texarkana. Email: gary.bugh [at] tamut.edu.

pp.1058-1060

Gerrymandering, one of the contemporary problems with legislative reapportionment, is the focus of Jonathan Winburn’s THE REALITIES OF REDISTRICTING. Party manipulation frames Winburn’s discussion of other districting issues, such as population equality, incumbency advantage, and racial discrimination. His evaluation of state redistricting looks beyond electoral outcomes to include rules and party control. Winburn explores multiple incentives and constraints on remappers in order to outline the conditions under which partisan influence on redistricting is most likely. While some of his findings provide few surprises, his lesson that rules help control partisan reapportionment is an important one for understanding and limiting gerrymandering.

Winburn explains that the goal of his work “is to delve into the varying rules and systems across the country to determine if the states already have constraints in place that limit political manipulation” (p.5). He reviews five main factors of a state’s redistricting environment: “control of the process, control of the government, use of traditional districting principles, potential court involvement, and the use of coterminous districts” (p.7). Regarding the first element, he presents a typology of control: unified legislative, divided legislative, partisan commission, and neutral commission. The kind of authority (legislative or commission) and level of partisanship (divided or unified) largely determine which strategy – partisan, incumbent protection, or neutral – that people charged with redistricting will follow. The body of Winburn’s work covers reapportionment processes and consequences in eight different states, two for each of his four process control types. He also details traditional districting principles: compactness, contiguity, preservation of political subunits, preservation of communities of interest, preservation of previous district cores, protection of incumbents, and compliance with the Voting Rights Act (pp.28-31).

As you can see, there is a lot going on in Winburn’s analytical framework – perhaps too much. At times, his discussion of the various types and categories is difficult to follow. Nevertheless, his approach might prove useful in evaluating a state’s redistricting processes. In each of his case studies of the various control types, Winburn alternates between two different states, allowing the reader to make connections with the book’s analytical components. While some of the state narratives may leave the reader wanting more background information, they largely [*1059] follow the framework that Winburn establishes in the first two chapters.

One theme that emerges in the state analyses is that commission redistricting is not necessarily immune from partisan influence. For example, the 2000 gerrymandering in Texas involved commission determination of districts. In order to avoid compromise, the Republican majority delayed legislative redistricting, and the responsibility fell to the Legislative Redistricting Board. The five-member board, which included the lieutenant governor, Speaker of the House, and attorney general, redrew maps that advantaged its party. Several other parts of the book are also informative. One such example is Winburn’s review of the judiciary’s actions in the area of redistricting, in which he elaborates the Supreme Court’s potential, yet hesitancy, to address the gerrymandering problem.

However, academics interested in deeper theoretical concerns or broader research agendas may not appreciate Winburn’s book. Some might be disappointed by the absence of a discussion of the theoretical nuances associated with redistricting. Winburn argues that understanding the reapportionment processes is important because it relates to “popular sovereignty.” If partisanship informs a state’s district lines, he notes, then the people do not have control over choosing their representatives; instead, representatives choose their electorates. This is certainly an important reason why remapping is an issue in representative democracy. Yet, Winburn’s consideration of popular sovereignty leaves aside the contending views of representation that have been used to justify practices and developments in district apportionment. For generations, as Stephen Ansolabehere and James M. Snyder elaborate in their compelling work, THE END OF INEQUALITY (2008), the traditional “federal” or “mixed” view of representation informed redistricting. Population shifts brought about representational inequalities between rural and urban districts. Legislators excused rural dominance because they used localities, not population equality, to determined districts. By adhering to the traditional perspective, state legislatures did not reapportion according to the popular democratic perspective of representation. It was not until after the pivotal decision of BAKER v. CARR (1962) that state legislators began to draw equally-populated districts, reapportioning on the grounds of “one person, one vote.” An analysis of contemporary political institutions or practices could use as its framework the tension between the traditional and the popular approaches to representation, perhaps using either as an evaluative standard. Partisan reapportionment may not only undermine popular sovereignty, for instance, but also democratic representation, more commonly known as political equality. Nevertheless, Winburn’s comments on popular sovereignty do not detract from the purpose of his book, namely to identify existing constraints on party influence in reapportionment.

An aspect of Winburn’s work that might trouble scholars is his measurement of party competition. His source of partisanship data is presidential election opinion polls from 2000. Winburn asserts that “[o]verall, the presidential vote serves as a good indicator of district [*1060] preference and allows for comparability across the states” (p.48). Winburn does not detail the source of his polling data, but it appears to be from national sources. Presidential election polls may indeed offer an indication of party preferences, but unless these surveys are at the state or county level, they are unlikely to capture accurately party identification within districts. Also, in today’s candidate-centered environment, many citizens vote for candidates of different parties. Nevertheless, for Winburn, since “the electorate was nearly evenly split across the country [in the 2000 presidential election] . . . , the presidential vote captures the same underlying partisanship as other down ballot races” (p.48). Winburn cites some sources to support this claim, but they are all conference papers that he has coauthored. Alternatively, some political scientists use party control of state legislatures and governorships in order to determine each state’s level of party competition.

Returning to the goals of his book, Winburn provides some suggestions that are relevant for activists working to remove partisanship from redistricting. He concludes that unified legislative control presents the greatest incentives and fewest constraints on partisan influence, while neutral commissions have the least incentives and most constraints (pp.34, 37). These findings are hardly revelations. However, through some of his state chapters, Winburn elucidates that neutral commissions, a favorite among most redistricting reformers, are susceptible to party manipulation (pp.198-199). He argues that, in addition to adopting independent commission control of the process, states need to cement redistricting rules into their constitutions. Some of these rules include complying with the Voting Rights Act and dividing a subunit only when its population exceeds other districts by 10 percent. In addressing how legislatures presently handle reapportionment, Winburn’s book adds to our knowledge of how rules may be used to restrain gerrymandering.

REFERENCES:
Ansolabehere, Stephen and James M. Snyder. 2008. THE END OF INEQUALITY: ONE PERSON, ONE VOTE AND THE TRANSFORMATION OF AMERICAN POLITICS. New York: W.W. Norton & Co.

CASE REFERENCES:
BAKER v. CARR, 369 U.S. 186 (1962).

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© Copyright 2008 by the author, Gary Bugh.

The Realities of Redistricting: Following the Rules and Limiting Gerrymandering in State Legislative Redistricting

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PUBLIC FREEDOM

by Dana Villa. Princeton: Princeton University Press, 2008. 448pp. Cloth. $75.00/£44.95. ISBN: 9780691135939. Paper. $24.95/£14.95. ISBN: 9780691135946.

Reviewed by Sheila Suess Kennedy, School of Public & Environmental Affairs, Indiana University-Purdue University Indianapolis. Email: shekenne [at] iupui.edu.

pp.1055-1057

Some scholars stake out an area of inquiry that is tightly focused and contained, scholarly real estate small enough to be examined and parsed so completely as to be effectively “owned” – an academic phenomenon sometimes described as knowing everything there is to know about not very much. Dana Villa is obviously not one of these scholars. To the contrary; in this book, he has shared with his readers an ambitious, intellectually rich and often provocative effort to engage with one of the most persistent questions of political philosophy, and to make a cogent (and I believe persuasive) argument for a particular conception of civic life and the public good.

In PUBLIC FREEDOM, Villa addresses what may be the thorniest issue of governance in a free society – the persistent tension and proper balance between the individualism nurtured in and privileged by liberal democratic regimes and a civic republican tradition that he admits has “often displayed a deep-seated resistance to pluralism and anything resembling open-ended argument” (p.3). Villa’s willingness to confront the dangers of a too-enthusiastic embrace of a poorly-conceived public realm informs his careful, nuanced argument for a reinvigorated and reconfigured public square and a more robust conception of citizenship and the public good. The intellectual rigor and honesty that characterize this book serve to distinguish Villa’s arguments from those offered by advocates for a vague and idealized communitarianism.

Villa believes that the abandonment of active participation in the public sphere (as he defines both participation and the public) is transforming Americans from citizens to subjects, changing them from empowered participants in public life to relatively powerless, passive observers of governing elites. He draws upon Tocqueville, Hegel, Mill and Arendt, among others, to argue for a new balance between the universal and the particular, the common good and enlightened self-interest. At the heart of his argument is an echo of an admonition that has been attributed to both Thomas Jefferson and Patrick Henry to the effect that “eternal vigilance is the price of liberty” (Phillips 1853, at 13) – here, that sentiment is expressed as the notion that “citizens must be given something to do for the public if they [are] to become capable of exercising the ‘active and constant surveillance’ of governmental authorities that a representative system demands” (p.17).

The main focus of the book is an extended consideration of what genuine democratic participation might look like – an effort to define what Villa calls “the generalization of interests,” the [*1056] relationship between our individual interests and those of the society within which we inevitably pursue those interests. What, he asks, is the nature of the public spaces our particular governing decisions have created? How do individuals exercise power within those spaces, and how might we strengthen their ability to do so? How do we prevent both the market and the state from dominating and ultimately extinguishing the public sphere? How do we retain the capacity to exercise genuine and meaningful citizenship and how do we protect the rule of law?

In order to answer these questions, and to flesh out his conception of the public sphere, Villa traces the Tocquevillian notions of civil society and local and political associations, reminding readers that the distinctions between our governing institutions on the one hand and religion, the marketplace, and public opinion on the other are relatively modern phenomena. Tocqueville’s signal contribution, according to Villa, was to identify civil society as a mediating realm between and among these newly separated social institutions, a realm where citizens acquire and hone associational and political skills.

Villa proceeds to build upon Tocqueville’s conception of civil society and the public sphere by examining the contributions and arguments of other philosophers, primarily but not exclusively the philosophies of Hegel, Arendt, Mill, Foucalt and Heidegger. In each of these discussions, he offers penetrating insights and displays a sometimes dazzling scholarship. While the language of the book is accessible, the analysis is demanding and closely reasoned (this is not a book to be blithely assigned as undergraduate background reading). I found his analysis of Arendt particularly insightful – especially his interpretation of what Arendt means by the “Social Question” and what she suggests about the differences between the American and French Revolutions.

In his concluding chapter, Villa draws heavily on Arendt as he returns to the question of the proper balance between positive and negative freedom – or, as he frames it, “the freedom to be a ‘participator’ in government” on the one hand (positive freedom), and the “emphasis on civil rights and ‘negative’ freedom” on the other. “We move,” he says “from a civic republican understanding to a liberal (and increasingly economic) one” (p.343). In a particularly penetrating paragraph summing up what he believes to be the proper conception of the public realm, he writes that

“The idea of community that haunts the Western tradition, then, is one that repeatedly sacrifices the fact of human plurality on the altar of unity, wholeness or oneness. It is an idea of political community that is not, in Arendt’s view, political at all. A political community is precisely a ‘community without unity.’ It is an association of diverse equals whose shared care for the public world takes the form of intense and open-ended debate, deliberation and decision. What is at stake in these political discussions and decisions is the best way to ‘preserve and augment’ the space of public freedom these citizens have either constructed or inherited.” (p.352

)

This description, it seems to me, is exactly right; it captures the reality – both the promise and the challenge – of the public realm and the American [*1057 community in ways that more idealized versions do not.

Throughout the book, it is clear that Villa’s concerns about the viability of the American public realm have been exacerbated by the actions of the Bush Administration. He notes with disapproval the Administration’s use of fear (notably its ‘War on Terror’) to facilitate the accretion of executive power during the Bush Administration, and he links that phenomenon with the corresponding atrophy of the robust citizenship for which he is arguing. As he concludes,

“At a time when our public world is under attack by an array of economic, technological and ideological forces (to say nothing of the cabal of unwitting Schmittians currently occupying the executive branch), it is important to realize that ‘care for the public world’ is the furthest thing from a ‘leisure-time sport for aristocrats.’ It is, it turns out, a responsibility we all share; a responsibility that grows heavier each day as the boundaries of our public world – and the attention span of many of our fellow citizens – perpetually contracts.”

In his introduction, Villa tells us that this book was written over several years. It was published in 2008, meaning (academic publishing being what it is) that it was completed well before the recent national elections. The obvious question that arises is what Villa would think about the ability of the Obama campaign (aided by the disaster that has been the Bush Presidency) to generate massive participation in the political process. The campaign had in excess of three million discrete donors; even more astonishing, it enlisted millions of volunteers who canvassed their neighborhoods, called their friends, wrote letters to the editors of local papers, delivered absentee ballots and drove people to the polls. Is this increased political activity an anomaly, or could it be the harbinger of a return to the sort of participatory civic life that Villa believes essential?

For obvious reasons, that is a question this book cannot answer. However, in his argument for a more vital and robust public square and a more capacious conception of freedom, Villa makes a substantial contribution, both to the political theory literature and to a more textured understanding of the nature of a genuinely free society.

REFERENCES:
Phillips, Wendell. 1853. Speech in Boston, Massachusetts, January 28, 1852. – “Speeches Before the Massachusetts Anti-Slavery Society.”

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© Copyright 2008 by the author, Sheila Suess Kennedy.

Public Freedom

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THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (2nd ed.)

by Gerald N. Rosenberg. Chicago: University of Chicago Press, 2008. 534pp. Cloth. $50.00. ISBN: 9780226726700. Paper $20.00. ISBN: 9780226726717.

Reviewed by Wayne D. Moore, Department of Political Science, Virginia Polytechnic Institute and State University. E-mail: wmoore [at] vt.edu.

pp.1045-1054

The first edition of Gerald N. Rosenberg’s book, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE?, received widespread praise and substantial criticism following its publication in 1991. As a testament to its lasting influence, this book received the 2003 Wadsworth Publishing Award from the Law and Courts Section of the American Political Science Association (the same section that sponsors this book review). That award honors books and articles at least ten years old that have had lasting impressions in the field of law and courts. THE HOLLOW HOPE truly is such a book.

The changes brought about by the second edition are primarily in the form of additions rather than revisions. The original introduction, first chapter, and chapters two through eleven, organized into three parts, are reprinted without any apparent changes. The second edition has a new two-page preface (accompanying that for the first edition), two completely new substantive chapters (12 and 13) on same-sex marriage, a lightly revised and renumbered conclusion (Chapter 14), and a new two-page epilogue. What we now get, in short, is the first edition plus Rosenberg’s analysis of cases involving same-sex marriage – including his treatment of the extent to which they support and/or require revision of the book’s original claims.

The second edition of THE HOLLOW HOPE, as with its precursor, is to be commended for what it is and what it does well. This book will remain a valuable resource for those studying roles that courts have played and may continue to play at the intersections of law and politics. The new chapters are informative and thought provoking. Most immediately, they will continue to provide useful perspectives for analyzing ongoing controversies involving rights of same-sex marriage. More generally, they will also be at the center of further analysis of relationships among constitutional and legal developments within states, across states, and at the federal level.

TThe book begins by offering a framework to explain when courts can and cannot bring about significant social change. Rosenberg emphasizes three constraints on judicial efficacy built into the structure of the American political system: the limited nature of constitutional rights, the lack of judicial independence, and the judiciary’s limited enforcement powers. In Rosenberg’s view, these constraints are seldom overcome, and thus courts are generally ineffective in producing major social change. But he allows for the possibility that these constraints may be [*1046] overcome under some conditions: when there is ample legal precedent for change, there is support for legal change from substantial numbers in Congress and from the national executive, there is strong support or weak opposition from citizens, and when conditions otherwise support compliance with the judicial decisions at issue.

The text carried forward from the first edition of THE HOLLOW HOPE draws on three sets of case studies to support this model of generally constrained judicial efficacy. Part 1 focuses on the US Supreme Court’s efforts to end racial segregation in BROWN v. BOARD OF EDUCATION (1954 and 1955) and subsequent cases. Part 2 examines the effects of ROE v. WADE (1973) and other decisions by the Supreme Court involving “women’s rights.” Part 3 is on Supreme Court cases involving the environment, reapportionment, and criminal law, with issues of criminal process receiving the most attention.

Treating BROWN and ROE as paradigmatic, Rosenberg denies that the Court in these cases (or those examined in Part 3) effectively brought about significant social reform. In the case of BROWN, he develops arguments that there was little progress toward desegregation in the South until the President and Congress became involved, especially through passage of the Civil Rights Act of 1964. Instead of having substantial positive direct or indirect effects, he argues that the Court’s rulings mainly set back the cause of racial integration. While Rosenberg finds greater compliance with ROE, he suggests that this ruling similarly did more to harm than advance “women’s rights,” and he gives more credit to extra-judicial developments, including “the tide of history,” for the progress made in this area as well.

Rosenberg offers a bold conclusion: “US courts can almost never be effective producers of significant social reform. At best, they can second the social reform acts of the other branches of government” (p.338/422 (1st/2nd ed.)). At worst, courts serve as “fly paper” for social reformers who succumb to the “lure of litigation” (p.341/427). Court rulings divert scarce resources away from more productive uses while providing only an “illusion of change” (p.341/427).

These conclusions, not surprisingly, have provoked strong reactions. While some have denied that THE HOLLOW HOPE’s main thesis is particularly novel, most reviewers have given Rosenberg credit for offering in this book an original model of judicial efficacy and for developing an impressive empirical account in support of that model. Similarly, many who have not fully embraced Rosenberg’s conclusions in this book have nevertheless appropriately credited THE HOLLOW HOPE for promoting greater understanding of the constraints on judicial powers and the conditions of judicial efficacy. I join others in commending Rosenberg in these ways – and especially for directing attention toward the significance of constitutional and legal developments outside courts, not only through judicial rulings and their direct and indirect effects.

Before turning to Rosenberg’s new analysis in the second edition, I provide here an overview of three overlapping branches of scholarly criticism of the [*1047] first edition. Stated differently, I identify three sets of issues on which reviewers have offered competing or alternative perspectives from Rosenberg’s. This overview may help to set the stage for analysis of the significance of the additions – both in relation to the first edition’s arguments and in relation to scholarly responses to them.

First, a number of scholars have challenged Rosenberg’s conclusions in THE HOLLOW HOPE while largely accepting his analytic theory and methods. Relying on some of the same sources along with independent evidence of the direct and/or indirect effects of BROWN, ROE, and other cases, individuals have argued that the first edition of THE HOLLOW HOPE understated the significance of judicial opinions involving desegregation, abortion, other “women’s rights,” rights of criminal defendants, and other matters. Among those offering empirical claims explicitly or implicitly in competition with Rosenberg’s have been Neal Devins (1992), Malcolm M. Feeley (1992), Michael W. McCann (1992), Bradley C. Canon (1998), and Roy B. Flemming, John Bohte, and B. Dan Wood (1998).

Second have been arguments that THE HOLLOW HOPE relies on an overly narrow, distorted, or otherwise inappropriate model of causation. Rosenberg generally treats the Court as a unilateral actor/agent whose influence is measured primarily by changes in the behavior of other political actors. According to David A. Schultz and Stephen E. Gottlieb (1998), “Rosenberg’s model fundamentally misstates the Court’s role in social change. It obscures how the Court exerts power and how it makes policy” (p.179). In place of Rosenberg’s “nomological model,” Schultz and Gottlieb offer a model of necessary, or “but for,” causality (pp.179, 182-84). They and others – including Devins (1992) and Susan E. Lawrence (1992) – have also suggested that judicial influence is not primarily independent from, but largely linked to, that of other institutions. McCann (1996) has similarly opposed Rosenberg’s “instrumental, linear, and unidirectional” model of causation (p.459).

Third, scholars have opposed Rosenberg’s standards of significance. Feeley (1992), for example, has emphasized that Rosenberg’s criterion of national political change is more stringent than that required by the Supreme Court opinions at issue. Feeley has noted that BROWN, for example, required only the end of de jure racial segregation, not all forms of segregation (Rosenberg’s benchmark). Kevin J. McMahon and Michael Paris (1998) and Robert Van Dyk (1998) appear similarly to have relied on standards of significance more modest than Rosenberg’s. Offering a different perspective, McCann (1992; 1996; 1998) has emphasized ways that court decisions play constitutive roles – which he regards as quite significant even though they are largely invisible to Rosenberg’s model. More specifically, McCann has directed attention to ways that a variety of political actors, acting through multiple governmental institutions and independently of them, have constructed legal norms from the bottom up, not only by complying (from the top down) with court decisions. [*1048]

Rosenberg has responded to a number of these criticisms in forums other than the second edition of THE HOLLOW HOPE. The most extensive and instructive responses are his 1992 reply to Feeley (1992) and McCann’s (1992) early reviews, his 1998 comments on the chapters in Schultz’s (1998) edited collection, and his 2008 electronically published response to critics (accompanying publication of the second edition of THE HOLLOW HOPE). These responses are helpful to the extent that they clarify and refine Rosenberg’s positions, offer additional analysis in their support, and identify areas of overlap and complementarity among the positions of Rosenberg and his critics, while also shedding further light on remaining differences. These responses are less helpful to the extent that they dismiss much of the criticism of the first edition as primarily ideological in nature.

It is beyond the scope of this review to comment more fully on Rosenberg’s responses in such forums to his prior critics. The main reason is that these responses are not included in the second edition of THE HOLLOW HOPE. One may regard this omission as regrettable to the extent that the book may have been strengthened by the inclusion of a more sustained response to critics than is contained in the new two-page epilogue. On the other hand, serious readers may readily access the electronic essay currently at the University of Chicago’s web site (assuming it remains available and unchanged), as with Rosenberg’s 1992 journal article and his 1998 book chapter. Perhaps the issues of accessibility and durability will similarly prove not to be problematic for broader readerships, including classroom use.

The second edition does offer a sustained response to one set of critics: those who have argued that the results of the litigation strategy for rights of same-sex marriage disprove or otherwise challenge Rosenberg’s arguments in the first edition of THE HOLLOW HOPE. I turn now to Rosenberg’s handling of that issue in the second edition’s new Part 4.

Rosenberg concedes that there are important differences between the new case study and those in the first edition. Thus far, litigation involving claims of the right to same-sex marriage have been primarily at the state rather then federal level. In addition, the relevant state court decisions have hinged mainly on issues of state constitutional and statutory law, not interpretation and enforcement of US constitutional guarantees.

Even so, Rosenberg claims that the litigation campaign for rights of same-sex marriage has as its aim achieving significant social reform, as defined earlier in the book. He characterizes gays as “a small minority in the United States that have suffered from, and continue to suffer from, discrimination” (pp.339-40). Litigation for same-sex marriage “is an attempt to broaden and equalize the right to marriage that is enjoyed by heterosexual adults” (p.340). Also, significantly, he emphasizes that the campaign “is an attempt to use the courts to produce change with nation-wide impact” (p.340). All three elements – a litigation campaign (1) by members of a political minority (2) seeking to vindicate “liberal” rights (3) on a national scale – are necessary to satisfy his conception of “significant social reform” (pp.xii, 4). [*1049]

Chapter 12 traces the “direct effects” of the litigation campaign for same-sex marriage through the 2004 elections. This chapter focuses in particular on the impact of three leading cases: BAEHR v. LEWIN (1993) (Hawaii), BAKER v. VERMONT (1999), and GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH (2003) (Massachusetts). Rosenberg claims that each ruling produced “positive” effects: the passage of a “reciprocal beneficiaries” law in Hawaii, the legalization of civil unions in Vermont, and the recognition of same-sex marriages in Massachusetts. He also claims that these victories were not complete: gay individuals still did not have the right to marry in Hawaii or Vermont, and the US government recognized neither the Vermont-style civil unions nor the same-sex marriages performed within Massachusetts. Nor were other states obliged to recognize such civil unions or marriages. Thus gay persons remained, nationally, “second-class citizens.” Same-sex couples “are denied over one thousand, one hundred federal rights that accompany marriage” (p.352).

Chapter 13 attempts to account for the “indirect effects” of this litigation campaign – including its effects on political mobilization both in favor of same-sex marriage and opposed to it, media coverage, and public opinion. According to Rosenberg, there has been an increase in mobilization supporting same-sex marriage that may be attributed in part to litigation. At the same time, there has been even more effective counter-mobilization by the opponents of same-sex marriage. He emphasizes that between 1990 and 2004, 42 bills to support same-sex marriage were introduced into state legislatures, while there were 394 aimed at proscribing it in some manner (p.363). Similarly, by 2004 more than a third of the states had banned same-sex marriage by constitutional amendment; and Congress in 1996 passed the “Defense of Marriage Act” (pp.364-65). Rosenberg concludes: “As a result of litigation, same-sex marriage proponents face legislative and constitutional obstacles on both the state and federal level that did not exist before they turned to litigation” (p.368). While acknowledging that some may regard the combined results as “two steps forward, one step back,” from the perspective of the litigants seeking marriage equality, according to Rosenberg, the results may be summarized more accurately as “one step forward, two steps back” (p.368). Similarly, Rosenberg argues that the GOODRIDGE decision in 2003 sparked a backlash in the 2004 elections which contributed to George Bush’s election as president: “The evidence suggests that if the GOODRIDGE case had not been brought, or had come out another way, John Kerry might well have carried Ohio and thus won the 2004 election” (p.382). Nor, in Rosenberg’s view, did litigation positively impact media coverage, which he concludes was “largely driven by opposition to same-sex marriage, not litigation in support of it” (p.393). Finally, he claims that litigation to win the right to same-sex marriage has not substantially increased public support for this right. To the extent that public opinion has become more supportive of rights of gay men and lesbians, he attributes that development to broader cultural changes rather than litigation.

Rosenberg’s overall conclusion: “[L]itigation as a means of obtaining the right to same-sex marriage has not [*1050] succeeded” (p.415). Those advocating this right, in his view, turned to the courts too soon (before they had widespread popular support) and asked for too much (same-sex marriage rather than civil unions). The more general take-away point, according to Rosenberg, is that “those who rely on the courts absent significant public and political support will fail to achieve meaningful social change, and may set their cause back” (p.419).

The tone of these new chapters is similar to that of the earlier ones. Rosenberg adheres to his primary thesis and marshals the evidence effectively. He appears not to have retreated from any of the first edition’s basic aims, methodological strategies, or conclusions. Instead of qualifying his earlier positions, the new chapters seek to reinforce and extend them.

One of the distinctive strengths of this analysis is also one of its most peculiar features: Rosenberg’s reliance on nationalistic standards as the primary measure of the significance and success or failure of a litigation strategy that most immediately has sought state-level recognition of rights of same-sex marriage. To be sure, there are good reasons to investigate the direct and indirect effects, at the national (including cross-state) level, of this effort to achieve reform through litigation in state courts. Rosenberg’s analysis of these effects has, moreover, been highly instructive.

At the same time, it seems appropriate to regard as equally significant the state-level successes and failures of this strategy. Counting only GOODRIDGE, for example, it makes sense to regard this outcome as a significant victory (from the perspective of advocates of rights of same-sex marriage) even if it has not been accompanied within a relatively short time horizon by net gains within a majority of the states or at the national level. The same would hold true if or when similar judicial victories were obtained, one at a time, in other states.

On this issue, Rosenberg claims to adopt the perspective of litigants and litigators. But surely not all of those advocating rights of same-sex marriage (or those familiar with their motivations) have adopted Rosenberg’s nationalistic criteria of significance or his dichotomous perspective toward success or failure. It is telling that Daniel R. Pinello, an author and activist cited repeatedly by Rosenberg in the second edition of his book (p.347 n.11; p.359 nn.2, 3 & 4; p.362 n.8), explicitly countered the idea that “courts are hollow hopes for significant social reform” (Pinello 2006, p.193). Pinello has described himself in his book, AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE (2006), as an activist for gay and lesbian rights as well as a political science scholar. Wearing both hats, he acknowledged Rosenberg’s arguments in the first edition of THE HOLLOW HOPE. Pinello also offered qualified support for Rosenberg’s primary thesis by taking a position that the litigation strategy for same-sex marriage resulted only in “disaster” before 2003 (p.33). But Pinello argued, contra Rosenberg, that the Massachusetts court’s decision in GOODRIDGE “brought about enormous social change” across at least three dimensions. First, “an estimated 6,000 or more lesbian and gay couples married [*1051] in Massachusetts in the first year” following the decision (p.192). Second, GOODRIDGE “had a profound inspirational effect for the marriage movement” (p.192). Third, the decision “opened a floodgate of heightened expectations” (p.193). Pinello was certainly aware of the backlash this decision and others had provoked; and he was under no misconception that it guaranteed same-sex couples rights of marriage at the federal level. Even so, he treated GOODRIDGE as a significant victory, relying on standards of success and significance closer to McCann’s (which he cited on p.31) than Rosenberg’s (cited on pp.30-31 & 33; countered on p.193).

Another author cited by Rosenberg (p.426, n.6) offers a perspective that competes in a similar way with his analysis. Michael J. Klarman has observed that “the most significant short-term consequence of GOODRIDGE, as with BROWN, may have been the political backlash that it inspired” (Klarman 2005, p.482). But Klarman takes a longer view of both cases. He maintains that the backlash against BROWN led to a “counterbacklash” that precipitated, in turn, federal responses including passage of the Civil Right Act of 1964. Klarman notes that there has not been a similar counterbacklash against state and national laws and constitutional provisions directed against same-sex marriages. Thus the current situation may seem bleak for gays and lesbians: “Marriage rights will now be harder to secure for gays and lesbians because state legislatures cannot provide them, and state courts cannot interpret state constitutions to protect them” (p.466). Even so, Klarman has not concluded that the cause of same-sex marriage has suffered a complete or final loss. For one thing, cases like GOODRIDGE “have dramatically raised the salience of gay-rights issues” (p.474). He has predicted, moreover, that “one day in the not-too-distant future a substantial majority of Americans will support same-sex marriage” (p.484).

Rosenberg does not explicitly engage Klarman’s handling of this issue. But he does take up the issue of whether the litigation campaign for rights of same-sex marriage has increased public support for legalizing such marriages. He concludes that the litigation campaign has not had a substantial effect in that direction, even while public support for civil unions has increased significantly over the past two decades or so. Rosenberg also suggests that the latter trend has been more a function of developments outside the courts than of court decisions. He may be correct.

But Klarman, Pinello, and many others have apparently had good reasons for emphasizing ways that court decisions affirming rights of same-sex marriage have both found support from, and reinforced, the positions on same-sex marriage held by key public constituencies. It remains an open question how these influences will play themselves out in specific contexts, or whether (or how or when) they will ultimately prevail at the macro level of primary concern to Rosenberg. In any event, at both the micro and macro levels (and in between), it will be no simple matter attempting to isolate judicial impact from other effects on the course of public opinion, especially from relatively long-term perspectives. Such efforts will be further complicated by the [*1052] complexities of relationships among courts and other governmental and non- governmental institutions – at the national, state, and local levels. By extension, the influence of these institutions may have been (and may continue to be) overlapping, combined, and interdependent rather than separate and independent.

Adding further complexity, the political terrain involving rights of same-sex marriage (and related issues) has shifted since the publication of the second edition of THE HOLLOW HOPE; and this terrain will doubtless continue to change in important ways in the days, months, and years to come. It is noteworthy in this connection that the major developments involving rights of same-sex marriage, since the book’s publication, have thus far largely been extensions of the pre-publication patterns that the new chapters document. In May and October of 2008, the highest courts in California (IN RE MARRIAGE CASES) and Connecticut (KERRIGAN), respectively, held that same-sex couples had the right to marry in those two states. The California court’s decision went into effect on June 16; Connecticut’s, on October 28. But the former was overturned by a ballot initiative, Proposition 8, on November 4, 2008 (after approximately 18,000 same-sex marriages were performed in that state); while a proposal to require a constitutional convention in Connecticut failed on that date. Ballot initiatives to deny rights of same-sex marriage were also approved on November 4, 2008, in Arizona and Florida; and the voters in Arkansas approved a measure banning unmarried couples from serving as adoptive or foster parents. There will doubtless be further controversies, including court cases, in these and other states. Most immediately, a number of lawsuits have been filed in California challenging the validity of Proposition 8.

The recent results of the ballot initiatives in Arizona, Florida, Arkansas, and especially California reinforce Rosenberg’s argument that litigation strategies for rights of same-sex marriage have led to significant set-backs. His theory also provides some tools to explain why litigation strategies (along with other factors) appear to have produced relatively full and lasting successes in some states but not others. Full accounts of the paths of legal and constitutional development within particular states and within the nation more generally may benefit from Rosenberg’s analysis, even if such accounts may be further enriched by supplemental perspectives as well.

REFERENCES:
Canon, Bradley C. 1998. “The Supreme Court and Policy Reform: The Hollow Hope Revisited.” In David A. Shultz (ed). LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang, 215-249.

Devins, Neal. 1992. “Judicial Matters.” Review of THE HOLLOW HOPE (1st ed.), by Gerald Rosenberg. 80 CALIFORNIA LAW REVIEW 1027-69

Feeley, Malcolm M. 1992. “Hollow Hopes, Flypaper, and Metaphors.” Review of THE HOLLOW HOPE (1st ed.), by Gerald N. Rosenberg. In “Symposium: The Supreme Court and Social Change.” 17 LAW & SOCIAL INQUIRY 745-60. [*1053]

Flemming, Roy B., John Bohte, and B. Dan Wood. 1998. “One Voice Among Many: The Supreme Court’s Influence On Attentiveness to Issues in the United States, 1947-1992.” In David A. Shultz (ed.), LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 21-61.

Klarman, Michael J. 2005. “BROWN and LAWRENCE (and GOODRIDGE).” 104 MICHIGAN LAW REVIEW 431-89.

Lawrence, Susan E. 1992. Review of THE HOLLOW HOPE (1st ed.), by Gerald N. Rosenberg. 86 AMERICAN POLITICAL SCIENCE REVIEW 812-13.

McCann, Michael W. 1992. “Reform Litigation on Trial.” Review of THE HOLLOW HOPE (1st ed.), by Gerald N. Rosenberg. In “Symposium: The Supreme Court and Social Change.” 17 LAW & SOCIAL INQUIRY 715-43.

McCann, Michael W. 1996. “Causal versus Constitutive Explanations (or, On the Difficulty of Being so Positive . . .).” 21 LAW & SOCIAL INQUIRY 457-82.

McCann, Michael W. 1998. “Law and Political Struggles for Social Change: Puzzles, Paradoxes, and Promises in Future Research.” In David A. Shultz (ed.). LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 319-49.

McMahon, Kevin J. and Michael Paris. 1998. “The Politics of Rights Revisited: Rosenberg, McCann, and the New Institutionalism.” In David A. Shultz (ed.). LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 63-134.

Pinello, Daniel R. 2006. AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE. Cambridge: Cambridge University Press.

Rosenberg, Gerald N. 1992. “Hollow Hopes and Other Aspirations: A Reply to Feeley and McCann.” In “Symposium: The Supreme Court and Social Change.” 17 LAW & SOCIAL INQUIRY 761-78.

Rosenberg, Gerald N. 1998. “Knowledge and Desire: Thinking About Courts and Social Change.” In David A. Shultz (ed.). LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 251-91.

Rosenberg, Gerald N. 2008. “Ideological Preferences and Hollow Hopes: Responding to Criticism.” http://www.press.uchicago.edu/books/rosenberg/. Last visited 14 October 2008.

Schultz, David A. (ed). 1998. LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. [*1054]

Schultz, David A., and Stephen E. Gottlieb. 1998. “Legal Functionalism and Social Change: A Reassessment of Rosenberg’s THE HOLLOW HOPE.” In David A. Shultz (ed), LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 169-213.

Van Dyk, Robert. 1998. “The Pro-Choice Legal Mobilization and Decline of Clinic Blockades.” In David A. Shultz (ed), LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 135-167.

CASE REFERENCES:
BAEHR v. LEWIN , 74 Haw. 530, 852 P.2d 44, clarified 74 Haw. 645, 852 P2d 74 (Haw. 1993).

BAKER v. VERMONT, 744 A.2d 864 (Vt. 1999).

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

BROWN v. BOARD OF EDUCATION, 349 U.S. 294 (1955).

GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH, 440 Mass. 309; 798 N.E.2d 941 (Mass. 2003).

IN RE MARRIAGE CASES, 183 P.3d 384 (CA, 2008).

KERRIGAN, ET AL. v. COMMISSIONER OF PUBLIC HEALTH, SC 17716 (CT SCt, 2008)

ROE v. WADE, 410 U.S. 113 (1973).

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© Copyright 2008 by the author, Wayne D. Moore.

The Hollow Hope: Can Courts Bring About Social Change? Second Edition

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EXPOUNDING THE CONSTITUTION: ESSAYS IN CONSTITUTIONAL THEORY

by Grant Huscroft (ed). New York: Cambridge University Press, 2008. 332pp. $85.00/ £45.00. Hardback. ISBN: 9780521887410. eBook format. $65.00. ISBN: 9780511402203.

Reviewed by Adam Shajnfeld (J.D., Columbia). Email adamshajnfeld [at] gmail.com.

pp.1039-1044

In EXPOUNDING THE CONSTITUTION, editor Grant Huscroft introduces and presents the essays of eleven scholars on constitutional issues such as morality, judicial review, and written vs. unwritten constitutionalism. An eclectic array of writing with transnational panache, the book could be titled “Expounding a Constitution,” as the essays do no share a single constitution as object of analysis. What follows are brief summaries and some criticism of these essays. I conclude with general comments about the book as a whole.

Steven D. Smith wonders what precisely people are interpreting when they claim to be interpreting the “constitution.” After all, few think they are simply interpreting the document alone, and in many countries there is no written document to interpret. Theorists generally differ on how to interpret the constitution, but fail to explain what they take as the object of interpretation. Smith believes that the “constitution” is a convenient placeholder, a “facilitative modern equivocation” like “morality” or “equality” (p.36), though for what nobody knows. Nonetheless, people blindly refer to this placeholder so as to engage in what they believe is meaningful debate and discussion.

Smith seems too skeptical of a common reference point, at least so far as the US is concerned. In the US, those engaged in constitutional interpretation are surely referring to, at a minimum, the physical document. Some say it should be interpreted in light of the intention of its framers, others in light of general principles embodied therein, but nobody believes the document irrelevant. One can view disagreement as a dispute over the way to interpret, and not what counts as, the constitution. Additionally, the fact that a significant body of constitutional law exists as judicial statements does not detract from the importance of the document. Cases interpreting the document may enter the pantheon of constitutional law, though they do so by virtue of the interpretive gloss they give to the document.

According to Larry Alexander, assuming there are real moral rights, they bind government institutions whether or not they are entrenched in a constitution. Thus, the real question is not whether to constitutionalize moral rights, or whether ordinary legal decisions made by the executive, legislative, and judicial branches must be consistent with those moral rights (they must), but which institution’s view of what those moral rights are and what they require shall prevail. Simply stating that a legislature is the most democratic branch does not answer this question, unless democratic representation is a proxy for accuracy in moral matters. Thus, Alexander raises, [*1040] but does not answer, the question of which institution is most competent to analyze and determine the requirements of morality. Jeremy Waldron believes it is the legislature.

Waldron builds on his prior scholarship that seeks to justify judicial deference to legislative decisions. According to Waldron, legislatures are arguably more institutionally competent than courts to adjudicate certain major individual rights cases involving significant moral and political issues such as abortion, affirmative action, and the rights of criminal suspects. First, while judges are constrained by statutes and precedent when engaging in moral reasoning within a case, legislatures are not. Second, legislatures are more likely to conduct society-wide, and not individual, moral reasoning. Society-wide moral reasoning is not concerned with “any particular comprehensive conception” of morality (p.57), but is instead concerned with providing moral justifications that can garner the widest social support in a community with moral dissensus.

Waldron does not pay enough attention to the perennial problem of majority rule and minority protection. A bill of rights exists, in part, to protect minorities. Majorities need no protection, as they are ensured, through voting power, control over government. Significant judicial deference to legislatures removes a bulwark against minority oppression. As a reflection of majority will, the legislature seems ill-equipped to protect minorities. A convincing argument for judicial deference must address this problem, and Waldron does not. David Dyzenhaus makes a similar point. He claims that Waldron ignores the dangers of consolidating power in a majoritarian body that can be captured by ignorant and or minority-discriminating interests. Dyzenhaus also lodges other criticism. First, Waldron is just as prone to romanticize the legislature as common law enthusiasts are to romanticize the judiciary. The legislature, he notes, often underwhelms. Second, the kind of moral debate necessary for intelligent legislating is often catalyzed by judicial decisions calling into question a law’s compatibility with the constitution. Third, legislative debates are concerned primarily with morality and policy, not legality. For Dyzenhaus, the second and third points demonstrate the necessity of a judicial role in major individual rights cases: some institution must help catalyze debate and attend to concerns of legality.

James Allan wonders how Waldron would decide constitutional issues that pit legislative decisions against individual rights if he were a justice on a nation’s highest court. Textualism, which stresses fidelity to the literal import of constitutional provisions, would confer too much power on judges, as bills of rights are often vague and sweeping. Living constitutionalism, the view that “the meaning of rights in bills of rights evolves and changes in accordance with the needs of contemporary society” (p.170), is also unacceptable, as it does not sufficiently constrain judges. Perhaps Waldron would employ the “puke test,” invalidating legislation only when it is utterly repulsive. Allan does not arrive at an ultimate answer.

Bradley W. Miller addresses an aspect of constitutional drafting, arguing that [*1041] rights provisions that have inherent within them limitations clauses are superior to those that have separate limitations clauses. In the US, a right is defined to include its own limits; in Canada, rights are conceived of expansively, while a separate clause allows what are putatively public policy concerns to outweigh the right in appropriate circumstances. Miller believes the US model is superior for two reasons. First, it avoids skewing public discourse over rights. A right that is defined expansively and without qualification becomes difficult to understand when it can be overridden by another provision. More certainty and meaning obtains when a right is viewed as extending, in itself, only so far as it does not hamper the greater rights of others. Second, a separate limitations clause conveys the false impression that one provision is concerned with rights and the other with public policy. Instead, Miller argues, a limitations clause is really about the potentially superior rights of others, and thus should not be analytically separate from a clause about rights. For instance, limiting my right to speak freely may protect others from infringement of their right to truthful information in commercial advertisements.

W.J. Waluchow’s essay, the gem of this collection, demonstrates how judicial review involving moral calculus can be democratically legitimate and truly enforce the constitution. Constitutions often include bills of rights or other provisions that refer to generalized normative concepts such as “equality.” Waluchow explicates the important distinction between mere moral opinions and moral commitments. If one thinks that homosexuality is wrong or that driving above the speed limit is bad, one is expressing mere moral opinion. Equality, on the other hand, is a general moral commitment. It is an abstract principle, ensconced in a constitution so as to secure protection from both majority and minority encroachment. It is generalized, as a constitution must be brief and widely applicable; specific instances of equality cannot be exhaustively addressed.

Individuals, majorities, or legislatures may each hold mere moral opinions on a wide variety of matters. Judges, though, need not and should not simply enforce these opinions. Judicial review in watershed rights cases involves evaluating legislation or behavior in light of moral commitments embodied in the constitution. One might think, for instance, that black men should not be able to marry white women or that Jews should not be able to marry Christians. The problem is that however popular these views are, and even if they garner majority support, they are completely inconsistent with a moral commitment reflected in the constitution – equality. The job of the judge then is to take these mere moral opinions and determine if they are or can be consistent with moral commitments made in the constitution. In this way, the judge is making a constitutionally uncontroversial moral evaluation, and may justifiably strike down a legislative decision that has the mere moral support of a democratic majority. The judge’s behavior is legitimate; he is not imposing his own morality, but a morality embodied in the constitution (which often requires a super-consensus to create and is superior to ordinary statute or moral opinion). [*1042]

Aileen Kavanagh explains the rationales that variously justify a reviewing court’s decision to (or not to) defer to the judgments of other branches of government. Noting that the decision can be rooted in concerns of institutional competence, expertise, or legitimacy, she concludes that it is too simplistic to equate “striking down with activism and failure to strike down with deference” (p.213). Courts may, for instance, uphold legislation even when only minimally deferring to the legislature, where the court believes the legislation valid. Conversely, courts may strike down legislation even while according substantial deference, where the legislation is positively and perniciously invalid.

T.R.S. Allan believes that if one takes the purpose of law to be a bulwark against arbitrary power, certain formal and substantive requirements follow that cannot be overridden by legislative or judicial decision. These are requirements of equality, fairness, and reason. First, laws must be written in general form, applicable to all and not targeting specific persons. Second, citizens must be treated equally under the generally applicable law. Third, legal rules must “embody a coherent rationale, consistent with a plausible account of the public good” (p.223). Absent such a rationale, the law becomes arbitrary. Fourth, the judiciary must be impartial. According to Allan, both individuals and courts must review legal rules to ensure compliance with this concept of law. Thus, if the legislature enacts a rule inconsistent with principles flowing from the conception of law as a bulwark against arbitrary power, and the courts uphold the rule, the citizen may refuse to obey it. Such a rule is an ultra vires act and commands no authority. Allan’s contention that the citizen who rejects an improper judicial decision is on the same moral footing as the judge who rejects an invalid act of the legislature confers great power on the individual citizen. This broad defense of civil disobedience may be troubling for those constitutional theorists who are concerned with maintaining order within a society characterized by moral dissensus.

Mark Walters advances a theory of unwritten constitutionalism that attempts to withstand charges of structuralism (unwritten law is simply interpretation of written law) and naturalism (unwritten law is a form of natural, inalienable and immutable law). Analogizing to the common law, and with Dworkinian undertones, he argues that the only significant difference between written and unwritten constitutions is that in the former, judges give specific meaning to general propositions of law, whereas in the latter, judges “articulate constitutional law by inferring general principles from a nonexhaustive and noncanonical set of specific legal propositions” (p.255). This is no resort to natural law, as the unwritten principles must be cognizable and coherent abstractions from particular specific propositions, which differ in each country’s written constitution. This is also no resort to structuralism, as the written constitution is seen as a specific embodiment of the unwritten constitution, and not vice versa.

Walters does not address how to resolve conflict between written and unwritten constitutional law. He does not even acknowledge it as a possibility. Surely, an imperfectly drafted constitution could [*1043] contain a provision incompatible with any overarching unwritten principle abstracted from the written constitution’s remainder. I also wonder how Walters would view a written constitution containing a clause disavowing the existence of an unwritten constitution.

Jeffrey Goldsworthy criticizes claims that there exist unwritten constitutional principles. He analyzes three arguments typically offered to explain the legitimacy of such principles. First, some argue that implicit in our concept of law is a moral content that exists in the form of unwritten constitutional principles. For Goldsworthy, the problem with this argument is that it muddles the distinction between legal validity and moral soundness. He thinks, for instance, that there is a general moral obligation to obey the law, and when a law is particularly evil, a competing moral obligation may require disobedience. Thus, legal validity is determined independent of moral value, though morality may affect the force given to law. Second, some argue that unwritten principles form a common law constitutionalism. In its strong form, the claim is that “the common law is the ultimate source of the authority of statute law, and perhaps written constitutions as well, and that therefore, either the common law already limits legislative authority, or it could be developed by the judiciary to do so” (p.289). Goldsworthy finds this argument lacking in historical and philosophical support. In particular, common law constitutionalists who claim that a legislature’s ultimate lawmaking authority cannot, on pains of circularity, derive from itself fail to explain how a judiciary, the repository of the common law, can derive its power if not circularly by its own decree. In its weak form, the common law claim is that judges may refer to unwritten principles of statutory interpretation when interpreting constitutional provisions, though these unwritten principles seek only to enforce unspoken legislative intent, not to supplant it. Third, some argue that unwritten constitutional principles simply embody background assumptions implicit in written constitutional provisions. This is a familiar linguistic concept (e.g., when I ask a doorman how I can reach the fifth floor of his building, we both understand, though I have not stated it, that I would only use the stairs or elevator, and not a crane, ladder, or helicopter).

Goldsworthy seems willing to grant the existence of an unwritten weak form common law or “implicit assumptions” constitutionalism, so long as it is understood that legislative authority and decree is supreme, that unwritten principles must be consistent with legislative intent, and that any implicit assumptions must be uncontroversial.

Huscroft has done a fine job of collecting interesting and timely essays. The book presents a politically and philosophically balanced view of constitutional theory, though it is by no means comprehensive. The essays are fairly accessible, though some, such as Goldsworthy’s, require more background than others. A few of the essays address areas that remain neglected within traditional theoretical discourse, such as Miller’s article on rights clauses, while others, such as Waldron’s, re-present familiar, though nonetheless important, views. [*1044]

While the book is divided into three sections, I found that the essays could not be so neatly categorized. In this review, I have re-ordered some of them. Huscroft’s introduction helps weave the patchwork of essays together, though in some cases I felt that the introduction parroted an essayist’s poorly-organized train of thought instead of repackaging it.

Altogether, the book is a good read, and is recommended for those interested in constitutional theory and interpretation, judicial review, and legal philosophy.

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© Copyright 2008 by the author, Adam Shajnfeld.

Expounding the Constitution: Essays in Constitutional Theory

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THE BILL OF RIGHTS TODAY: CONSTITUTIONAL LIMITS ON THE POWERS OF GOVERNMENT

by Joseph Dillon Davey. Lanham, MD: University Press of America, 2008. 300pp. Paper $38.00/£26.00/€40.95. ISBN: 9780761840756.

Reviewed by Jeremy A. Janow, Department of Government & Politics, University of Maryland. Email: jjanow [at] gvpt.umd.edu.

pp.1034-1038

Joseph Dillon Davey’s introduction to the current state of rights in the United States is intended for an undergraduate audience, and it is from the viewpoint of a prospective teacher that it is rightfully assessed. The preface states that the text was written for courses in political science, law, criminal justice, as well as those in political philosophy or the philosophy of law, and it contains reference to and discussion of a wide range of topics that are relevant to those areas of study. The goal of the book is to “examine the theories of law and government that under gird the most important cases the High Court has heard in the past half century” (p.xv). As implied by the title, the cases here are limited to those dealing with individual rights and not the structure of government, certainly another important means of constraining power and protecting rights. As is almost de rigueur for an introductory work on rights in the United States, Davey largely assumes the necessity of a written bill of rights, and looks to how the individual rights amendments to the Constitution have been protected in practice, as seen through key cases that have come before the Supreme Court. The cases highlighted in the book are relatively recent, as would be expected given the rise in rights jurisprudence in the second half of the twentieth century forward and the book’s focus on current practice. Little reference is made, however, to the relative paucity of rights talk and jurisprudence in the early history of the United States, leaving the impression of a nearly seamless theoretical and legal progression from the Bill of Rights to its contemporary instantiation in case law. This may not be entirely an oversight, as Davey’s primary focus is to emphasize the changing conception of individual rights from a highpoint largely set by the Warren Court to regressive interpretations by the Rehnquist and Roberts Courts, and to confirm the view of the Supreme Court as the proper locus of rights protection in America.

THE BILL OF RIGHTS TODAY is divided into four parts, each with a very short introduction that references a broad range of notable political thinkers to situate the topic in a philosophical context, followed by chapters that detail specific areas of rights protection and conclude with excerpts from relevant cases. Part One sets up the book much in the way that the introductions set up each part, with a theoretical discussion of the idea of human rights and its historical development. Davey points to Plato’s REPUBLIC as the seedbed for what would later become the theory of human rights and then moves on in the first chapter to discuss briefly the important philosophical antecedents that culminated with the creation of the Bill of Rights, including Cicero, Locke, Rousseau, Paine, and Blackstone. The [*1035] philosophical sections here, and throughout the book, tend towards sweeping generalizations rather than careful analysis. For example, Davey writes that Aristotle “actually believed the ‘Royal Lie’” described in Plato’s REPUBLIC, but only takes a further two paragraphs to justify such a claim (p.5). For classes that take political philosophy seriously this will be an inadequate treatment of the subject, and likely more confusing to students than explanatory. While spurring interest in the connection between the history of political thought and the jurisprudence of the Supreme Court is surely laudable, any professor would need to add significantly to the philosophical discussions to give students more than a theoretical sound bite. Done right, this would make the philosophy in the book largely unnecessary or possibly counterproductive. Alternatively, for classes less philosophically inclined, such references may be an unnecessary diversion from the analysis of individual rights today in their legal context. Additionally, readers may be surprised that there is more discussion of the Ancient Greeks than of the debates by the founders on whether to have a bill of rights at all.

Chapter Two takes up the role of the courts and the critique that judicial review is counter-majoritarian and undemocratic. Davey discusses Robert Bork and Alexander Bickel as staking out the primary arguments against and for judicial review, and highlights BROWN v. BOARD OF EDUCATION (1954) as the exemplar of judicial prevention of majority tyranny. While Davey argues the commonly held view that elected legislatures could not have achieved similar goals as the Supreme Court in those circumstances, he fails to mention recent scholarship that challenges the Court’s effectiveness in achieving social change, such as Gerald Rosenberg’s HOLLOW HOPE thesis or Michael Klarman’s study of the political backlash against the civil rights movement that Brown helped spur. Additionally, while Davey notes that there likely is some politics behind the Court’s decisions, there is no discussion of the political foundations of judicial review and judicial supremacy, or that the increased judicialization of politics in the United States is part of a global trend. The chapter moves on to brief treatments of strict construction and originalism, followed by a consideration of the justices’ varying positions on authority. The basis for the divergence in opinions of the justices, Davey concludes, is their formative experiences as children, and “the best person to question about the dramatically different reasoning of a Hobbesian or Lockean Supreme Court justice would be the Justice’s psychoanalyst” (p.27). Davey’s choices here are critical, as the chapter covers a lot of ground in a casual and unsystematic manner, leaving readers with the confusing notion of the Court as both a bulwark of principle against democratic tyranny and an institution whose decisions hinge on the justices’ psychic intricacies.

Part Two begins the analysis of categories of individual rights and their protection, starting with the right to fundamental fairness, including chapters on due process as well as cruel and unusual punishment. Incorporation is discussed, with particular attention given to the increased protection of criminal suspects by the Warren Court followed by a narrowing of the due process clause [*1036] under subsequent Courts. The chapter concludes by staking out the high water mark of the liberal interpretation of due process with GOSS v. LOPEZ (1975) and points to BENNIS v. MICHIGAN (1996) and LOCKYER v. ANDRADE (2003) as primary examples of the trend towards narrowing it. Chapter Four provides a legal history of the death penalty in the United States, including a discussion of the punishment of juveniles, and excerpted opinions from GREGG v. GEORGIA (1976) and ROPER v. SIMMONS (2005).

The strongest part of the book is the third, which discusses equal justice under the law, including chapters on the rights of minorities, women, and affirmative action. In Chapter Five Davey is engaging as he describes the unequal treatment of African Americans as seen in PLESSY v. FERGUSON (1896), and the transformation of constitutional law made through landmark cases such as BROWN and LOVING v. VIRGINIA (1967). He discusses the difference between de jure and de facto discrimination, and here briefly acknowledges that BROWN has not led to widespread integration in education in practice. The chapter on the rights of women provides the venue for a valuable discussion of the development of the levels of judicial scrutiny, as well as of cases specific to the protection of women’s rights, in particular UNITED STATES v. VIRGINIA MILITARY INSTITUTE (1996). The chapter on affirmative action offers brief but useful discussions of the case law surrounding both employment and educational affirmative action, followed by case excerpts including MCCLESKY v. KEMP (1987) and GRUTTER v. BOLLINGER (2003).

The final substantive part treats basic rights of a free society such as the freedom of expression, the separation of government from religion, and rights of privacy. The protection of speech is quickly but broadly covered in Chapter Eight, including discussions of obscenity and hate speech, and offers contextual details for DENNIS v. UNITED STATES (1951), and BRANDENBURG v. OHIO (1969), as well as excerpts from TEXAS v. JOHNSON (1989), and WISCONSIN v. MITCHELL (1993). Curiously for a book on individual rights, Chapter Nine focuses its discussion on the establishment clause of the first amendment and on cases regarding school prayer, rather than on a treatment, or even mention, of the free exercise clause and related cases. Davey’s decision here may be that students relate more directly to religion in the context of education, but some additional work will be necessary for an instructor concerned with both religion clauses. The history and explanation of the establishment clause is fairly detailed, however, and includes the development and application of the LEMON test to subsequent cases.

Chapter Ten takes up what Davey terms the ‘right to be left alone by government,’ which contains an analysis of and extensive quotation from ROE v. WADE (1973) and touches upon other important privacy cases such as GRISWOLD v. CONNECTICUT (1965), and LAWRENCE v. TEXAS (2003). Interestingly the chapter ends with an excerpt from KELO v. CITY OF NEW LONDON (2005), but does not provide any further discussion of the case or any stated connection to the chapter as a whole. Chapter Eleven continues the treatment of privacy rights [*1037] in relation to searches and seizures. Here Davey argues from a libertarian perspective, hinting that the Fourth Amendment is on its deathbed and that the United States is moving towards an Orwellian state, with BOARD OF EDUCATION v. EARLS (2002) serving as key evidence. Davey concludes his book with a brief section on the protection of rights in an international context, offering that the discussion of rights in the American case can serve as a guide to a global understanding of what individual rights entail.

This review must conclude with a discussion of the potential place of THE BILL OF RIGHTS TODAY in the syllabus of a course today. On the whole, Davey’s work reads as a series of lectures to an introductory course on American constitutional law, plus excerpts of related Court opinions. Its scope is simultaneously too broad and too narrow, as it tries to place specific decisions in philosophical context but ends up giving neither case law nor theory a sufficiently careful treatment. This may be due in part to the limitations of a book of its size serving as an adequate introduction to the protection of rights in America. However, it is likely also due to the approach the book utilizes, one that eschews close analysis of topics and cases and instead makes use of an informal, conversational style followed by case excerpts, often unanalyzed. While a casual presentation and organization may have the benefit of making introductory material more easily accessible to undergraduates, the philosophical and interpretive laxity undercuts the substance of what might be gained, and does not provide the tools for teachers to put the case law in useful theoretical or political context for students.

The book may provide the groundwork upon which an ambitious teacher might build, who could supplement the brief philosophical and historical information that lead up to the cases as well as providing more in depth analysis of the cases themselves. Davey’s work could then serve as a first pass, with each chapter furnishing the touchstone from which more detailed theoretical and legal material is offered to fill in where it left off. Of course, any teacher willing to put together such additional texts may find the introduction provided here to be unnecessary, and possibly encumbering. Those who wish to teach the narrative of the Court as prime and proper protector of individual rights, with the Warren Court as archetype, will find a like-minded resource in this book. Instructors who question the prevalence of rights talk or who consider the political rather than legal protection of rights as an important topic of study, will find Davey’s treatment lacking. An introductory class is likely the only time most students, with the exception of those headed to law school, will think seriously about the protection of individual rights in the United States. Accordingly, any introductory text to the subject ought to provide the basics of what any citizen should know about rights and their role in protecting them. This book largely leaves readers with the general impression that the protection of rights in America is best left to the Supreme Court. In the end, it simply confirms the view that many students likely hold before taking any introductory class at all. [*1038]

REFERENCES:
Klarman, Michael J. (2007). BROWN v. BOARD OF EDUCATION AND THE CIVIL RIGHTS MOVEMENT. New York, NY: Oxford University Press.

Plato (1956). THE REPUBLIC. Trans: Francis Cornford, Kurt Hildebrandt, and Eric Voegelin. Oxford and Cambridge: Oxford University Press.

Rosenberg, Gerald N. (2008). HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

CASE REFERENCES:
BENNIS v. MICHIGAN, 517 U.S. 1163 (1996).

BOARD OF EDUCATION v. EARLS, 536 U.S. 822 (2002).

BRANDENBURG v. OHIO, 395 U.S. 444 (1969).

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

DENNIS v. UNITED STATES, 341 U.S. 494 (1951).

GOSS v. LOPEZ, 419 U.S. 565 (1975).

GREGG v. GEORGIA, 428 U.S. 153 (1976).

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

GRUTTER v. BOLLINGER, 539 U.S. 306 (2003).

KELO v. CITY OF NEW LONDON, 545 U.S. 469 (2005).

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

LEMON v. KURTZMAN, 403 U.S. 602 (1971).

LOCKYER v. ANDRADE, 538 U.S. 63 (2003).

LOVING v. VIRGINIA, 388 U.S. 1 (1967).

MCCLESKY v. KEMP, 481 U.S. 279 (1987).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

ROE v. WADE, 410 U.S. 113 (1973).

ROPER v. SIMMONS, 543 U.S. 551 (2005).

TEXAS v. JOHNSON, 491 U.S. 397 (1989).

UNITED STATES v. VIRGINIA MILITARY INSTITUTE, 518 U.S. 515 (1996).

WISCONSIN v. MITCHELL, 508 U.S. 476 (1993).

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© Copyright 2008 by the author, Jeremy A. Janow.

The Bill of Rights Today: Constitutional Limits on the Powers of Government

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RELIGIOUS FREEDOM, RELIGIOUS DISCRIMINATION, AND THE WORKPLACE

by Lucy Vickers. Hart Publishing: Oxford, England, and Portland, Oregon, 2008, 244 pp. Paper. $74.00/£35.00. ISBN: 9781841136875.

Reviewed by Gloria C. Cox, Department of Political Science, University of North Texas. Email: Gloria.Cox [at] unt.edu.

pp.1029-1033

Last year in Great Britain, Amina Azmi, a teacher’s aide, was directed to remove her full-face veil while teaching. She refused, on the basis that some of the teachers with whom she worked were male. After she was dismissed from her job, she brought legal action against the school, claiming religious discrimination in the workplace. In response, school officials argued that students benefit from seeing the facial expressions of teachers and that learning is hindered without such informal clues. Courts decided for the school and against Azmi, although it would be a mistake to view this case as having settled the issue of veils and headscarves in the workplace. As British Attorney Audrey Williams pointed out, “. . . employers should note that the circumstances in this case are quite specific – relating to the classroom setting, the nature of the teacher/pupil relationship, and the impact that wearing a full-face veil would have on a teacher’s ability to do their job” (Berry 2007).

It is just such situations that give contemporary relevance to RELIGIOUS FREEDOM, RELIGIOUS DISCRIMINATION AND THE WORKPLACE, by Lucy Vickers. In this relatively short but important book, Vickers tackles a complex set of issues related to equality and religious freedom in the United Kingdom (UK), and, peripherally, the United States, Canada, and the European Union. The author does a fine job of introducing and explaining the major legal issues of this important topic. In her words, “The purpose of this book is to examine the interaction of the rules on religious discrimination with the right to religious freedom and to contribute to the debate over the proper limits on religious freedom in the workplace” (p.1). Overall, her effort is scholarly, informative, interesting, and thought-provoking.

Vickers begins with the European Commission’s Directive on Equality at Work, explaining that the Directive provides general guidelines for the domestic legislation that member countries are supposed to enact. The United Kingdom has passed such legislation, the implementation of which has given rise to some interesting and complex questions. Among the most frequent complaints against employers are the following: 1) refusal to allow employees time off for religious observances; 2) denial of permission to wear symbols of religious faith; and 3) discrimination in hiring, [*1030] training, and promoting members of certain religions or beliefs.

A less obvious consequence of the anti-discriminatory legislation has been opposition from religious groups who want to be able to restrict their hiring, promoting, and firing to members of their own faith, excluding all others. Additionally, some religious groups want to discriminate, as when they refuse to hire homosexuals, divorced women, or others who are not in compliance with church rules. Laws in the United Kingdom, in fact, accommodate some of these preferences, although sex and racial equality rules may trump religious preferences.

Add to those problems the issues that surface in the workplace just because employees of different religions, no religion at all, or differing levels of commitment toward religion work together. While the religious person may assert the right to proselytize, the nonreligious person may believe that his or her religious freedom is violated by having to listen to religious messages from the devout. Other practices also have the potential to make fellow workers uncomfortable, including the wearing of religious symbols. Take, for example, the Muslim woman who wears a headscarf. She may be upset about the Muslim woman who does not, and vice versa. In another example, a person who opposes abortion on account of her religious beliefs may want to let others know of her opposition, but it surely cannot be permitted to take the form of a badge she wears that displays the picture of an aborted fetus (WILSON v. US WEST COMMUNICATIONS 1995). And what about the male worker who refuses to work around women? Can he insist on male-only colleagues?

Additionally, the image of the business itself may be relevant, if owners have worked to build and maintain a secular presence for it. That carefully crafted vision may be affected if the employer is required to accommodate the religious practices of one or more employees. Add to that mix government agencies that are required to display a secular image for clientele in a society that legally separates church and state, and also pays close attention to equality issues. Vickers clearly establishes the complexity of the subject with which she is dealing.

One of the first questions Vickers tackles is the origin of human rights. She notes that Westerners are quick to say that human rights derive from human beings having been created in the image of God, but that does not serve the issue very well in the context of religious diversity and with those who do not believe in or practice any religion. Vickers provides a particularly interesting discussion on this key point, offering several non-religious justifications for human rights. As she notes, “Since the Enlightenment there has been a search for a human rights theory which is not predicated on the existence of God” (p.36). The result has been a focus on human dignity, including the idea of human equality. She notes that, “for individuals to flourish they need to enjoy the freedom to choose their own concept of good” (p.38).

There is a logical progression from concepts of human rights to efforts to define religion, in that the European Convention on Human Rights (ECHR) recognizes protections for practice of a religion or belief. While the term religion tends to be difficult to define, there are certain key characteristics associated with religion, including for many a belief in God or some other supreme being. Religion is also characterized by consideration of matters [*1031] of “ultimate concern” (p.15). Articles 9 and 14 of the ECHR provide for forum internum, which is “the right to have inner thoughts and beliefs” (p.41). Related is the concept of forum externum, which is the right to practice, or manifest one’s beliefs including worship, teaching, practice, and observance (p.94). There is both an individual and a collective dimension to this freedom, although it is not absolute and may be restricted based on numerous considerations.

At this point, the author begins her analysis of specific religious rights in the workplace, pointing out that the workplace is a site of competing relationships and rights that must be balanced in search of a sense of proportionality. As Vickers moves through one topic after another, we recognize the difficulty of sorting out the issues. If one person’s faith contains the view that homosexuality is wrong, is that person’s religious freedom violated by a diversity policy that insists on equal treatment for homosexual applicants and employees? If women are accorded lesser or different status in a religion, must an employer overlook his personal religious beliefs in awarding promotions in the workplace? Vickers emphasizes that there is a solution for every violation of religious rights – resignation from the job. After all, no one is required to take and keep a certain job, and quitting relieves the oppressed individual of the oppression (p.45). However, that is hardly any protection in a world that values work so greatly. For most people, work serves many benefits, including the obvious economic one. Still, religious rights cannot overshadow other fundamental rights and be permitted to take priority. Society values equality, for example, and therefore cannot allow religious interests to trump such an important secular interest.

According to Vickers, “The right to freedom of religion is granted extensive protection within international law, demonstrated by its inclusion in the Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights” (p.84). The ECHR has taken a narrow view of religious protections under Article 9, making a distinction between religiously motivated conduct (which is not protected) and the manifestation of religion (which is protected). One example Vickers provides is that of a Christian wearing a cross as a necklace or pin. In fact, there is no requirement for Christians to identify themselves by the wearing of a cross, so the act is not a manifestation of religion but merely religiously motivated behavior (p.98). Vickers makes clear her opposition to this distinction (p.218).

One of the most interesting parts of the book is the author’s attention to common complaints in the workplace, such as denial of requests for time off for worship or prayer, the refusal of employees to carry out assigned tasks to which they object, and lifestyle issues. She does a fine job of capturing the nuances of court rulings in her exploration of each of these areas, enabling the reader to gain insight into legal perspectives. Lifestyle issues, for example, tend to arise in religious organizations that expect employees to maintain the values of the faith. It is not uncommon, then, to come across employees who have been dismissed for marrying outside the church, divorcing [*1032] their spouse, or having an extramarital affair. Courts generally respect the organization’s rights over the individuals in such instances, though not without exceptions.

Finally, Vickers provides a brief comparative perspective by analyzing some aspects of religious discrimination law in the United States, Europe and Canada. In the United States, protection comes primarily from Title VII of the Civil Rights Act of 1964, as amended. She notes that US courts tend to take an expansive view of what constitutes a religion, but draws the line on occasion, refusing, for example, the Ku Klux Klan’s claims of protection as a religious organization and a single individual’s right to eat cat food as a protected religious practice. Beginning in 1972 with amendments to require reasonable accommodation for religious issues, there appeared to be much greater protection for individuals, although Vickers suggests that not much is required of employers to demonstrate hardship, which allows them to avoid making accommodations.

Religious harassment is also an issue, and follows the well-known hostile environment and quid pro quo guidelines. Proselytizing in the workplace is the most common form of harassment, as an employee tries to convert others, even in the face of objections that the messages are unwelcome. Such activities take on added dimensions when the person making the effort to convert another is in a position of authority over the audience (p.192). The legal question is where to draw the line between practice of one’s religion and the right to work without the presence of unwelcome proselytizing.

In Canada, discrimination on the basis of religion is illegal, and religion is broadly defined, usually by the individual making a claim to protection. In fact, a person’s views are typically accepted, even if they deviate from those of other adherents of the same faith (p.196). Just as in the ECHR, Canadian law distinguishes between required manifestations of religion, which are protected, and religiously-motivated behavior, which is not protected (p.197). The author draws the conclusion that Canadian law places a heavier burden on employers to accommodate employees than US law (p.199), although courts expect parties on both sides to compromise on these matters (p.205). Vickers includes a brief discussion of cases dealing with employment within religious organizations, including whether a Catholic can be dismissed for violating tenets of the faith, such as marrying a divorced man or having an extramarital affair. In such cases, the answer has generally been in the affirmative.

Within the member countries of the European Union, religious discrimination in the workplace comes under Employment Equality Directive 2000/78 (p.206), although, as one would expect, there are important differences in implementation and enforcement across the membership. Vickers provides examples of definitions of religion and court rulings to illustrate these variations, which is thought-provoking.

In sum, Vickers has written a highly informative book that provides great detail about the subject. She offers the [*1033] reader nuanced and dense discussions of the issues, and while some readers may find the legal arguments and explanations complex, the informed reader with an interest in the subject will welcome the elucidation and clarification of many fine points. I found RELIGIOUS FREEDOM, RELIGIOUS DISCRIMINATION AND THE WORKPLACE to be an informative and welcome addition to the literature on this important subject.

REFERENCES:

Berry, Mike. April 2, 2007. “Teacher At Centre Of Veil Row Loses Dismissal Appeal Against Former Employer Kirklees Council.” Retrieved on October 31, 2008, from www. PersonnelToday.com.

CASE REFERENCE:
WILSON v. US WEST COMMUNICATIONS, 58 F 3d 1337 (1995).

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© Copyright 2008 by the author, Gloria C. Cox.

Religious Freedom, Religious Discrimination at the Workplace

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THE SUPREME COURT ON TRIAL: HOW THE AMERICAN JUSTICE SYSTEM SACRIFICES INNOCENT DEFENDANTS

by George C. Thomas III. Ann Arbor: University of Michigan Press, 2008. 320pp.. Cloth. $29.95. ISBN: 9780472116188.

Reviewed by Caryl Lynn Segal, University of Texas at Arlington. Email:csegal [at] uta.edu.

pp.1025-1028

As exonerations increase in criminal cases, legal scholars, political scientists, and attorneys seek preventative steps required to avert victimizing the innocent. In his introduction George C. Thomas asserts that the system is broken and in need of major reform: “The problem is not a discrete set of erroneous inputs, but a ‘systemic failure in criminal justice.’” Thomas looks to Supreme Court rulings that place procedural requirements above substantive justice as but one culprit.

Buttressing his argument is this quote from HERRERA v. COLLINS (1993, at 400): “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal . . . relief absent an independent [procedural] constitutional violation occurring in the underlying state criminal proceedings.”

CONE v. BELL will be heard during the 2008 Term and raises procedural obstacles to a habeas petition involving the withholding of BRADY information that could have resulted in a different verdict. The CONE opinion will clarify whether the procedural barriers currently in place will be lowered to any degree.

Angela Davis posits in ARBITRARY JUSTICE that innocent defendants are sacrificed because of prosecutorial misconduct, but she too believes the system needs major reform. Thomas also considers the heavy caseloads of both prosecutors and public defenders in the state system as factors in the number of wrongful convictions. He points out that the Cardozo Innocence Project found no wrongful convictions in the federal system with its lower caseloads for both prosecutors and defense counsel.

Thomas cogently dissects the problems occurring in the adversarial system in contrast to the European civil system. He avers that asking prosecutors to serve justice while being advocates creates tensions. Because prosecutorial career rewards focus primarily upon conviction rates, prosecutors who pursue justice are competitively disadvantaged.

Devoting two early chapters of the book to the history of the jury system, Thomas lays the foundation for the cultural importance of the right to trial by jury. He also illustrates its downsides with cases wherein racism and anti-Semitism created unjustified guilty verdicts.

The theme that underlies the entire book appears in Chapter Seven, when Thomas discusses the Court’s intervention in state criminal justice and the case that led the way. Although the Court would support the defendant’s claim of innocence in a racial case, it refused to [*1026] do likewise when presented with a final appeal in the Leo Frank case in 1914.

He next examines state’s rights and how they played a major role in criminal justice. The Warren Court’s MIRANDA (1966) decision illustrates one example of major procedural changes in criminal cases.

The Burger Court deliberated on the issue of ineffective assistance of counsel in WASHINGTON v STRICTLAND (1984). Thomas avers that the STRICTLAND Court’s reliance on procedure symbolizes the nearly insurmountable barriers faced by innocent defendants.

Although the Court indicates that a sufficiently high showing of actual innocence would make an execution unconstitutional, it has done nothing to make the threshold for establishing innocence less onerous. As a result of procedural barriers, appeals that cast considerable doubt on the guilt of a petitioner prove insufficient to support the claim of innocence.

Craig Bradley, author of THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION, is quoted at the end of Chapter Seven (p.166) as positing that the failure of the Court’s criminal procedure doctrine cannot solely be blamed on the Court: “[B]ecause of the nature of the judicial process, no Supreme Court, no matter how competent and regardless of its political leanings, could have done much better.” Thomas concurs with Bradley but points out that creating better criminal procedure rules rests with state and federal legislatures who consistently evade the task.

Congress created the American Uniform Code of Military Justice with the goal of a search for truth. Both federal and state systems are currently patchwork quilts of constitutional law, statutes and rules lacking a pattern for truth seeking.

Thomas does not absolve the Court of its obligation to be a friend of the innocent when he explains the Court’s failure to focus upon the substantive issues involving guilt as opposed to police misbehavior. Thomas uses HOUSE v. BELL (2006) and HERRERA (1993) to demonstrate his point forcefully.

Chapter Eight illustrates in detail how the French and the American military justice systems, with truth as their goal, are more likely to protect the innocent. Thomas takes the reader step by step into the criminal process, comparing the procedures. In multiple places Thomas stresses that convincing the jury and getting a victory overshadows discovering the truth in the American system.

In 1949 Jerome Frank observed that if a witness gives testimony that opposing counsel believes to be truthful but harmful to his/her client, the attorney will do anything and everything possible to destroy the witness’s credibility. In 1999 William Pizzi in his book, TRIALS WITHOUT TRUTH, wrote “our adversary system turns witnesses into weapons to be used against the other side.”

In the Civil law system, witnesses do not answer questions but rather narrate their story. The judge has the leading [*1027] role in a Civil trial, and both the prosecutor and the defense counsel are minor characters. Thomas contrasts this with the leading role played by prosecutors and defense counsel at an American trial.

Thomas’ concluding chapter represents 20% of the book and is page after page of suggested changes in our system to enable a goal of truth. What is noteworthy is that as he dissects each idea, Thomas discusses its value and the problems that would have to be overcome in order to make the point a reality. Both political scientists and legal professors will find this section worthy of study and consideration. Each and every point is a potential debate topic.

My personal favorite suggestion originates with the role of barrister in the British system. Thomas proposes that a pool of “criminal law specialists” be created. From this pool would be selected both prosecutors and defense counsel. Each specialist would at different times in different cases serve in both roles. Salaries for both would be equal, and they would be able to utilize the same expert witnesses. When the public defender is serving as prosecutor, it is decidedly more likely that discovery will be shared in a timely fashion. Thomas lists the many advantages because counsel are familiar with each side from past experience.

Since there are cases involving conspiracies, organized crime, and terrorism, requiring specialized knowledge and skill, Thomas suggests a Criminal Enterprise Task Force which would work exclusively in these discrete case categories. Again members of the task force would be called upon to work both sides of a case. Thomas believes that this is not a pipedream but could come into being at some future date.

As he did in Chapter Eight, where the entire process is broken down into component parts, Thomas suggests changes for all aspects of a criminal case. This legal scholar has created an insightful look at the system’s failures to protect the innocent in a relatively brief but highly engrossing book. THE SUPREME COURT ON TRIAL offers widespread appeal to those who recognize injustices but are stymied in finding a solution.

REFERENCES:
Bradley, Craig M. 1993. THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION. Philadelphia: University of Pennsylvania Press.

Davis, Angela J. 2007. ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR. New York: Oxford University Press.

Frank, Jerome. 1949. COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE. Princeton: Princeton University Press.

Pizzi, William. 1999. TRIALS WITHOUT TRUTH: WHY OUR SYSTEM OF CRIMINAL TRIALS HAS BECOME AN EXPENSIVE FAILURE AND WHAT WE NEED TO DO TO REBUILD IT. New York: NYU Press.

CASE REFERENCES:
BRADY v. MARYLAND, 373 U.S. 83 (1963).

CONE v. BELL, 492 F3d 743 (6th Cir. 2007); cert. granted 6/23/2008. [*1028]

HERRERA v. COLLINS, 506 U.S. 390 (1993).

HOUSE v. BELL, 547 U.S. 518 (2006).

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

WASHINGTON v STRICTLAND, 466 U.S. 668 (1984).

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© Copyright 2008 by the author, Caryl Lynn Segal.

The Supreme Court on Trial: How the American Justice System Sacrifices Innocent Defendants

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