Vol. 13 No. 11 (November 2003)
LEGISLATIVE DEFERRALS; STATUTORY AMBIGUITY, JUDICIAL POWER, AND AMERICAN DEMOCRACY by George I. Lovell. Cambridge: Cambridge University Press, 2003. 290pp. Cloth $65.00. ISBN; 0-521-82415-X.
Reviewed by Beau Breslin, Department of Government, Skidmore College. email@example.com.
The most enduring studies in American political and constitutional development are the ones that confirm a longstanding suspicion. Take Robert G. McCloskey’s classic THE AMERICAN SUPREME COURT as an example. Surely McCloskey’s analysis of the historical development of the Supreme Court was (and still is) viewed as a rare intellectual accomplishment. McCloskey suspected, and his evidence confirmed, that the evolution of the Court’s role in the American political structure was facilitated by the institution’s more prudent and moderate sensibilities. He set out to show that the history of the Supreme Court followed particular patterns, patterns that often reflected society’s main priorities. And he was successful in achieving that objective.
Like McCloskey, George I. Lovell has now confirmed another deep-seeded suspicion. As the title suggests, Lovell’s primary thesis is that legislators, often caught between “powerful constituencies with incompatible demands” (p.3), regularly “empower” courts by writing deliberately ambiguous laws, thus deferring to courts the responsibility of policy-making. His work, in other words, confirms the deepest suspicions of certain academics who have long believed that legislators seek protection from their constituents by shifting the burden for providing statutory meaning directly to the judiciary. Put simply, Lovell argues that legislators, by enacting purposefully vague laws, consciously and cleverly transfer policy-making power to the courts.
To be sure, George Lovell is not the first to make this claim (Graber 1993), but he does treat it with a certain subtlety not seen before. Among his many goals is the recognition that our system of separation of powers is much more complex and nuanced than previously thought. Indeed, he insists that if his analysis is correct, the relationship between America’s legislative institutions and the courts should be more carefully examined.
The vehicle for Lovell’s central argument is the labor movement of the late nineteenth and early twentieth-centuries. Lovell examines, in painstaking detail, four separate pieces of federal legislation—the Erdman Act of 1898, the Clayton Act of 1914, the Norris-LaGuardia Act of 1932, and the Wagner Act of 1935. Together, the incidents that gave rise to these various pieces of legislation, and the subsequent involvement of the courts, paints a vivid picture of labor politics at the turn of the century.
The book consists of two theoretical chapters, four case studies, and a conclusion. In chapter 1, “Rethinking Judicial Policy Making in a Separation of Powers System,” Lovell challenges the dominant assumptions of many judicial scholars. He writes that students of the judiciary rely upon a particular framework—the “legislative baseline framework”—to analyze the policy making impact of courts. The framework begins with certain assumptions. For example, the assumption that a decision by Congress to pass legislation “establishes a particular policy position for Congress” (p.5), or the one that claims “the relative level of political power attained by different organized groups can be measured by examining the legislation Congress passes” (p.7) are seemingly pervasive in the literature. And yet these assumptions, and thus the broader framework they support, are problematic. Lovell writes that the legislative baseline framework inevitably “leads scholars to evaluate the impact and legitimacy of judicial decisions by comparing the position established by judges to a baseline position established earlier by legislators” (p.4). This, he argues, can be a mistake. The legislative baseline framework, for instance, does not take into account those instances in which legislators deliberately avoid making choices and instead look to the courts to settle interpretive controversies. Because Lovell is convinced that such legislative deferrals occur often enough to warrant careful consideration, the framework, he concludes, is not an entirely useful tool.
Having challenged the dominant paradigm, Lovell then commences his assault on conventional interpretations of our system of separate powers. He begins in Chapter 2 by “reassessing” the traditional understanding of the labor movement in the early twentieth century. The author “rejects” the standard view that “judges shaped the labor movement by thwarting important legislative victories that labor organizations thought they had won through democratic processes in the legislative branch” (p.45). Instead, he argues that Congress is equally to blame for the ineffectiveness of labor laws because “legislators deliberately created conditions that empowered judges to make important substantive decisions on labor policy” (p.45). Accordingly, Lovell insists that the conventional view of the judiciary’s mostly negative impact on the labor movement is overstated.
He then turns to his case studies. Chapters 3 through 6 systematically analyze first the legislative histories, and then the corresponding judicial reactions to the four labor policies mentioned above. Beginning with the Erdman Act and concluding with the Wagner Act, Lovell weaves fascinating stories of labor leaders fighting for influence, legislators cleverly positioning themselves for success, and judges forced to take responsibility for Congress’s fears. It was these judges who, until now, were seen as the enemy of labor’s progress.
To get a feel for Lovell’s provocative stance, consider the case of ADAIR v UNITED STATES (1908), a case that successfully challenged a portion of a federal statute (the Erdman Act) barring “yellow dog” contracts on interstate railroads. The typical impression of ADAIR’s place in the history of American labor is that the case represents a “counter-majoritarian” attack on collective action. According to Lovell, however, the case should more properly be understood as a logical consequence of Congress’ deliberate—and calculated—uncertainty. He notes that Congress members were so quick to compromise on the major provisions of the Erdman Act that the resulting legislation was mostly “symbolic,” or as one commentator noted, “as harmless as an infant.”
Lovell, therefore, paints a dramatically different picture of labor’s “success” following passage of the Erdman Act. Perhaps, he says, we should interpret the Court’s actions not as hostile to the democratic process, but rather as consistent with a legislative inclination to craft ambiguous policies. Indeed, legislators “invited” the actions of the courts, and the courts accepted those invitations. It is true that the Court severely weakened the power of the Erdman Act, but Lovell insists that because of the purposeful ambiguity of the original legislation, the influence of labor organizations, as well as the relationship between the legislature and the judiciary, is not exactly as it seems.
The same is true when considering the influence of the Clayton Act. Mirroring his earlier conclusion regarding the Erdman Act, Lovell writes that, counter to the conventional view, the “evidence suggests that judges were making choices that legislators had declined to make at the time the Clayton Act passed” (p.154). Once again, the result of Lovell’s study is that we really can’t say a whole lot about the relative influence of each institution. The labor organizations responsible for sponsoring the legislation, Lovell maintains, are not accurately reflected in the legislation. Similarly, Congress’s role is not as transparent as scholars have previously thought. Indeed, the inter-branch relationship between Congress and the Court is far more layered and complex.
The strengths of Lovell’s book are many. It is well organized with a clear hypothesis and a persuasive set of conclusions. It is also elegantly written. Indeed, the stories the author recounts, and the way he recounts them, certainly depict fascinating moments in American political history.
In contrast, the weaknesses of Lovell’s book are few, and are centered primarily on his methodological approach. In fact, Lovell even admits to the limitations that accompany an argument that rests exclusively on case studies. For example, he recognizes that drawing precise conclusions from only four illustrations is probably beyond his reach. He is willing to offer up some general conclusions: “1) that deferrals occur in highly contested policy areas, 2) that legislators have both motive and opportunity to defer to courts in a larger number of cases, and 3) that scholars should pay more attention to legislative deference as a source of judicial power” (p.xx). But he can’t get any more precise than that. Another weakness of the book is that not everyone will be convinced by Lovell’s evidence. Even the author admits that despite the tremendous detail of the case studies, it is difficult to say with complete accuracy whether legislators were truly avoiding responsibility. Two legislators, he says, may have very different reasons for voting the way they do, and thus to ascribe a similar motive to each is, at best, controversial.
Finally, one of the weaknesses of LEGISLATIVE DEFERRALS is precisely what many would argue is its greatest strength—its exclusive focus on labor policy. To be sure, anyone who reads the book will come away with a more nuanced understanding of statutory ambiguity, inter-branch conflict, judicial authority, and the influence of the labor movement in the early twentieth century. But perhaps what makes LEGISLATIVE DEFERRALS so persuasive is that there is something unique about the influence of labor on Congress during this period. Indeed, if the power of labor organizations is distinct from the influence of other interest groups, in this or any other time, then we are right to question the generalizability of Lovell’s conclusions. Without similarly detailed analysis of other, non-labor, legislation, we are left to guess as to whether his conclusions only apply to certain categories of interest group politics.
In the end, however, this is a terrific book. The greatest virtue of LEGISLATIVE DEFERRALS is the author’s attempt to switch the paradigm: Rather than simply assuming that legislators craft laws independent of judicial influences, Lovell effectively argues that “the researcher’s new goal should be to discover how well participants in legislative processes anticipated the role of the courts and whether those participants tried to shape the role judges would play” (p.12). What is most intriguing about Lovell’s insightful book is what it says about questions of accountability and democracy. Perhaps not as sweeping as McCloskey’s work, George Lovell’s LEGISLATIVE DEFERRALS; STATUTORY AMBIGUITY, JUDICIAL POWER, AND AMERICAN DEMOCRACY is nonetheless a book of uncommon interest.
Graber, Mark A. 1993. “The Non-Majoritarian Difficulty: Legislative Deference to the Judiciary.” STUDIES IN AMERICAN POLITICAL DEVELOPMENT 7:35-72.
McCloskey, Robert G. 2000. THE AMERICAN SUPREME COURT (Third Edition). Chicago: University of Chicago Press.
ADAIR v UNITED STATES 208 U.S. 161 (1908)
Copyright 2003 by the author, Beau Breslin.
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