Law and Politics Book Review: January 2010

LEGAL ACCENTS, LEGAL BORROWING: THE INTERNATIONAL PROBLEM-SOLVING COURT MOVEMENT

by James L. Nolan Jr. Princeton, N.J.: Princeton University Press, 2009. 264pp. Hardback. $35.00. ISBN: 9780691129525.

Reviewed by Salmon A. Shomade, Department of Political Science, University of New Orleans. Email: sshomade [at] uno.edu.

pp.46-50

For those familiar with James Nolan’s 2001 book REINVESTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT, LEGAL ACCENTS could be considered a sequel that only Nolan is best suited to write. In REINVESTING JUSTICE, Nolan provided detailed accounts of the history behind the creation of American drug courts. Therein he detailed the influence of these courts in a social movement that aimed (and still does) to change American jurisprudence. With LEGAL ACCENTS, Nolan has expanded his focus to consider a range of problem-solving courts in six countries. Even for those not familiar with his earlier book, in LEGAL ACCENTS Nolan nicely summarizes the major elements of a drug court and how, along with other similarly specialized courts, they constitute a group of problem-solving courts growing by leaps and bounds in the United States and in five other countries.

In the Introduction, Nolan succinctly explains that LEGAL ACCENTS tracks the growth of an international movement that started with the development of American drug courts and the expansion of the drug court model to other problem-solving courts in other nations mostly, community courts, domestic violence courts, and mental health courts. LEGAL ACCENTS is thus a comparative study in that it relates the similarities and differences between and among various problem-solving courts (also referred to as “specialty courts” or “specialized courts”) as they germinated and developed in their respective cultural contexts in the United States, Australia, Canada, England, Ireland, and Scotland. Nolan specifically explores how actors in the non-U.S. countries adopted the blueprints for U.S. problem-solving courts but “with a curious mix of enthusiasm and concern -- a sort of ambivalence . . . that characterizes international attitudes toward the United States more generally” (p.4). We learn that by using ethnography as his primary methodology, Nolan visited all six countries at least three times. During these research trips, he interviewed major court actors such as judges, magistrates, and sheriffs. He also observed operating court programs, “and spoke with other staff associated with the courts, including probation officers, treatment providers, lawyers, program directors, victim support personnel, medical doctors, evaluators, and, in the case of aboriginal courts, elders and peacemakers” (p.5). In addition, he spoke with government officials who helped create these specialized courts and observed facilities and entities working with these courts, examined data from government reports, legislative debates, court evaluation reports, and publications from many organized groups focusing on [*47] specialized courts, and spent considerable time attending conferences on these courts.

Chapter 1 of LEGAL ACCENTS captures the history and development of problem-solving courts in the United States. In this chapter, we learn that the literature generally focuses on three “interrelated problems (1) of individual offenders, (2) of a troubled court system seeking to regain its legitimacy, and (3) of society more broadly (due, ostensibly, to the failure of other social institutions to handle perennial social ills)” (p.10). Major characteristics of the four major specialty courts – drug courts, mental health courts, community courts, and domestic violence courts – are also discussed in the chapter. According to Nolan, the U.S. now has more than three thousand problem-solving courts with several hundreds more in the planning and implementation stages. As a person who studies drug courts, I am aware that U.S. drug courts alone now number two thousand five hundred, remarkable given the first U.S. drug court was established in Miami in 1989, only twenty years ago.

The focus of Chapter 2 is on the relationship between law and culture and on the process of globalization itself. Citing other scholarly works on globalization, Nolan discusses whether the process of globalization can be characterized as “homogenization” and if “heterogenization” or “localization” is the counterpart to homogenization. Nolan notes that some scholars perceive homogenization “as the process by which American-styled capitalism, mass culture, and consumerist habits are imperialistically advanced in a world that is progressively more interconnected through electronic communications, the Internet, television, and transnational corporations” (p.24). Other scholars see heterogenization or localization as the extent people reject what is perceived as the dominant global culture and reassert their “indigenous practices and commitments to local identities” (p.24). Nolan eschews this seemingly binary choice by arguing, “The reality, of course, is more complex and more interesting than a simple dichotomy such as this would suggest” (p.25). Also in this chapter, Nolan analyzes the concepts of Therapeutic Jurisprudence and Restorative Justice (both U.S. originated theories), and wonders if these culturally embedded theories transfer well outside the U.S. Notably, although these theories originated independently from the creation of the problem-solving court movement, they are now considered the underlying theoretical frameworks for the movement and they dictate many practices utilized in U.S. specialized courts. Nolan concludes the chapter by raising several important questions. For example, he asks, “If a legal product, such as a problem-solving court, is developed in a uniquely American context, is it not intrinsically American to the core? Is it possible to fully extricate the culturally determined qualities of American problem-solving courts -- such as their distinctively therapeutic tendencies – when the programs are transported to other countries?” (p.41)

Some of the questions asked in Chapter 2 are answered in the next three chapters of LEGAL ACCENTS. The focus of Chapter 3 is England and the process by which it developed its problem-solving courts. Since 1998, England has established three types of specialized courts, [*48] drug courts, domestic violence courts, and community courts. Nolan demonstrates that although the U.S. inspired the creation of these courts, there is a great deal of hesitancy adopting therapeutic jurisprudence practices (for example, the demonstrative and theatrical acts of U.S. problem-solving court judges) in English specialized courts. Clearly, such hesitancy is strongly shaped by the cultural underpinnings of the British who tend to be and perceive themselves as more “buttoned up” than their U.S. counterparts. Canada and Australia are the subjects of Chapter 4. Nolan posits that “both Australians and Canadians have enthusiastically embraced problem-solving courts” – each has created the four major specialized courts mentioned above, and more – “though not without critical reflection and restraints” (p.102). Thus, unlike England, both Canada and Australia have more fully embraced therapeutic jurisprudence theory. Nonetheless, these two countries differ from England and U.S. in one important respect. Because of the significant influence of aboriginal populations, they both have aboriginal courts which integrate cultural themes as part of the problem-solving court process. Chapter 5 captures the development of the court movement in Scotland and Ireland. Early in this chapter, Nolan explains that the specialized courts of these two countries not only distance themselves from the practices of their U.S. counterparts but are also wary of their closer neighbor England’s practices. As of 2007, Ireland had only one problem solving court, the Dublin drug court, which began as a pilot project in January 2001. Although Scotland started its first problem-solving courts nine months after Ireland initiated its drug court, Scotland has since created additional specialized courts in the form of domestic violence, youth, and community courts. These two nations’ courts share similar qualities when compared to those of the U.S. but they also have important differences between them. For instance, lawyers participate in the specialty courts of Scotland but are excluded in the Dublin court.

In Chapter 6 while discussing “American Exceptionalism” Nolan isolates what are considered the major features of U.S. specialized courts such as enthusiasm, boldness, and pragmatism, and extensively analyzes how these features contribute to U.S. influence. He also compares these features with what are perceived to be the hallmark features of other nations’ programs namely moderation, deliberation, and restrain. I find Chapter 7 to be the most fascinating chapter. Appropriately titled “Ambivalent Anti-Americanism, Nolan argues that importers of U.S. problem-solving courts’ practices demonstrate the same contradictory attitudes reflected in most global surveys. On the one hand, many people complain about U.S. ideas and customs, but they do not necessarily reject American cultural products. In this context, Nolan notes that these importers “worry out loud about American cultural imperialism, even while they simultaneously import and embrace what is undeniably an American-grown legal product” (p.159). Nolan supports this with several non-U.S. authors’ criticisms of their own nations’ attitudes toward the U.S. For instance, British author Jonathan Freedland offers, “We simultaneously disdain and covet American culture, condemning it as junk food even as we [*49] reach for another helping – a kind of binge-and-puke social bulimia” (p.169). Nolan does not totally spare Americans in this regard. Partly in this chapter and also in Chapter 8, he laments Americans’ dismissive attitudes toward the rest of the world. In Chapter 7, he points out, “[W]hat one finds is a perceived lack of concern on the part of the United States in learning about the interests, practices, and cultures of other places, and a preoccupation among Americans with spreading their own ideas and practices” (p.165). Nolan ends Chapter 8 – the last chapter in LEGAL ACCENTS – on this note: “Americans, . . . as long as they have the blindfold removed, may wish to look more carefully at the criminal justice practices of other countries” (p.196).

Overall, I enjoyed reading LEGAL ACCENTS, and having read and been influenced by REINVESTING JUSTICE, was not disappointed by this “sequel.” I find LEGAL ACCENTS as equally accessible to all readers as REINVESTING JUSTICE was. However, I have a few criticisms. While I believe that Nolan aptly captures the mix of enthusiasm and concern exhibited by his non-US subjects in adapting American problem-solving courts, I feel that he could also have shared with us more instances or contexts when U.S. actors have imported cultural products or norms and their reactions to the imports. Nolan offers his own criticisms on Americans’ attitudes toward the rest of the world, but he does so in a very limited fashion. By more fully comparing the level of ambivalence (if there is indeed any) demonstrated by U.S. actors when adopting other cultural norms in this book, Nolan might, perhaps, deflect any potential criticism that he did not sufficiently critique Americans’ attitudes toward imported ideas, products, or norms.

In addition, although Nolan’s selection of the six countries studied is based on where the problem-solving court movement is most advanced and it helps that these are all common-law jurisdictions, there is hardly any mention of other countries’ activities on specialized courts. For readers interested in learning more about non-Western nations’ efforts in this regard, there is very little information available in the book. To be fair, one book cannot do it all. But an acknowledgment of other non-Western countries’ activities, even if limitedly, could give the book a boost as the definite global study of the “international problem-solving court movement.” Separately, as Nolan himself readily acknowledges in the Introduction, LEGAL ACCENTS is not an evaluation study. The book does not tell us whether problem-solving courts are effective or efficient at what is deemed to be their chief mission. If a reader is seeking to know about “best practices” or which of the six countries studied is the “most successful,” this is not the right place to look.

Nonetheless, this is a necessary and useful book for readers who study problem-solving courts, especially those that track the development as well as the internalization of the movement surrounding the growth of these courts. Those interested in how law and culture can or cannot be successfully imported will also benefit from reading LEGAL ACCENTS. Most specifically, critics of American cultural imperialism – regardless of interest in problem-solving courts – should read this book. These [*50] critics might be surprised about the “difficulty of disentangling law from its cultural roots” (p.196). For readers in all these categories, I definitely recommend LEGAL ACCENTS as a must-read. For others, the book still belongs to the book shelf space containing ready references about noteworthy subjects.

REFERENCES:
Nolan, James L, Jr. 2001. REINVESTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT. Princeton, N.J.: Princeton University Press.

JUSTICE TAKES A RECESS: JUDICIAL APPOINTMENTS FROM GEORGE WASHINGTON TO GEORGE W. BUSH

by Scott E. Graves and Robert M. Howard. Lanham, MD: Lexington Books, 2009. 128pp. Cloth. $55.00. ISBN: 9780739126615.

Reviewed by Lisa M. Holmes, Department of Political Science, The University of Vermont. Email: Lisa.M.Holmes [at] uvm.edu.

pp.42-45

There have been a number of important books in recent years dedicated to analyzing various aspects of the judicial appointment process. For example, Nemacheck’s STRATEGIC SELECTION analyzed how presidents choose nominees to the U.S. Supreme Court. In PICKING FEDERAL JUDGES, Sheldon Goldman examined presidential agendas in selecting nominees to the lower federal bench. In ADVICE AND CONSENT, Epstein and Segal took on the task of examining each distinct aspect of the appointment process, from vacancy creation through nomination and confirmation. Nancy Scherer’s SCORING POINTS focused on the problematic influence of “elites” in the nomination and confirmation process for lower court judges. In JUSTICE TAKES A RECESS: JUDICIAL APPOINTMENTS FROM GEORGE WASHINGTON TO GEORGE W. BUSH, Scott E. Graves and Robert M. Howard analyze a rarely-examined aspect of the appointment process by focusing on recess appointments to the federal bench.

The recess appointment power had been dormant for a number of years prior to President Clinton’s unilateral appointment of Roger Gregory to the U.S. Court of Appeals for the Fourth Circuit. Gregory’s appointment ushered in a period where recess appointments, although rare, represented some of the most interesting and contentious examples of modern judicial appointment politics. The president’s recess appointment power, however, has received little attention in the literature on judicial appointment politics. Graves and Howard examine the circumstances under which presidents are more or less likely to make recess appointments to the federal bench, and analyze whether the lack of judicial independence associated with a recess appointment is cause for concern. In taking on these questions, Graves and Howard provide an important contribution to the growing scholarship in the judicial appointments area.

Aside from the overview and introduction provided in Chapter 1 and the conclusions addressed in Chapter 6, this book centers around four substantive chapters, each addressing some aspect of the use or implications of the recess appointment power. In Chapter 2, Graves and Howard provide an historical analysis of presidential use of recess appointments by examining all 308 recess appointments to Article III positions from George Washington in 1789 through George W. Bush in 2004. They find that recess appointments are less likely in recent decades, as the efficiency justifications for these unilateral appointments have decreased. [*43] Presidents also have acted strategically, with recess appointments being more likely when the length of time the recess appointee would sit increases. In addition, Graves and Howard find evidence that modern presidents (here defined by FDR’s first presidential term) have acted differently than their predecessors when it comes to recess appointments. Modern presidents with greater partisan support in the Senate, for example, are more likely to make recess appointments than are modern presidents with fewer partisan allies in the Senate, whereas this factor did not influence previous presidents when deciding unilaterally to seat people on the federal bench. Graves and Howard return to the issue of modern presidents and recess appointments in chapter 5.

In Chapters 3 and 4, Graves and Howard turn their attention to the issue of whether judges behave differently during the recess appointment period than they do after they have been confirmed to a lifetime tenured position on the bench. Chapter 3 focuses on the voting behavior of three Supreme Court justices (Earl Warren, William Brennan, and Potter Stewart) who were initially placed on the bench by President Eisenhower as recess appointees. Although the analysis here is confined to the behavior of the three justices for whom voting data are readily available, the results indicate that these justices did temper their voting behavior during their recess appointment period compared to their behavior after confirmation. Prior to confirmation, for example, justices were less likely to vote liberally in politically salient cases, and as well were less likely to rule against the interests of the federal government compared to their voting behavior post-confirmation.

In Chapter 4 (which the authors have written with Pamela Corley), Graves and Howard find similar results in their analysis of the behavior of 14 recess appointees to the courts of appeals. Prior to confirmation, recess appointees were less likely to vote liberally in salient cases. After confirmation, furthermore, circuit court judges were more likely to vote in favor of their ideological preferences than they were prior to confirmation, and as well were more inclined to vote in line with circuit and Supreme Court preferences. Prior to confirmation, the authors conclude that these judges were more likely to vote in ways that would appeal to those responsible for the nomination and confirmation process rather than in line with the expectations of their circuit colleagues or their Supreme Court superiors.

Chapter 5 returns to the questions of when and why presidents use the recess appointment power, focusing in this chapter on the use of this power by modern presidents (here, beginning with the advent of the Truman presidency). The analysis confirms and furthers many of the findings related to modern presidential behavior noted in Chapter 2. Graves and Howard conclude that modern presidents use the recess appointment power in “an opportunistic fashion” (p. 94), when the president is bolstered by stronger support in the Senate and stymied by minority opposition to nominee confirmation. This finding of course makes a lot of sense in the context of the most severe problems that plague the modern judicial appointment process, where even a president with a good deal of support in the Senate may be frustrated by the Senate minority’s filibuster power to [*44] prevent confirmation. The authors also find that presidential popularity in the modern era is negatively related to the use of the recess power and that recess appointments have become less prevalent in general as the modern presidential era has continued.

Graves and Howard offer their conclusions in Chapter 6 by arguing that, at least as far as judicial appointments go, the president’s ability to make unilateral recess appointments is a power whose time as passed. They conclude that the strategic nature of the use of this power (particularly by modern presidents), coupled with the loss of judicial independence as reflected in the recess appointees’ voting behavior, renders the recess appointment power both unnecessary and potentially damaging. Although the analysis of judicial voting behavior is based on a relatively small number of Supreme Court justices and circuit court judges, their findings do indicate that judges behave differently during the recess period than they do after confirmation. From this, Graves and Howard conclude that “there is considerable doubt that the recess appointee during the time of the recess actually provides the appointing president with any great policy benefit” (p. 98). One question the authors leave on the table here is whether the president is greatly benefitting in the long term by recess appointing those who would have unlikely secured confirmation otherwise. An analysis of the likelihood of confirmation (depending on whether the unconfirmed nominee was recess appointed or not) based on the nominee’s personal and professional characteristics as well as the political climate at the time of appointment would help further answer the question of whether presidents get anything valuable out of a recess appointment. The authors’ main conclusions, however, that recess appointments in the modern era are unnecessary, strategically motivated, and problematic to judicial independence are substantiated well by their analysis and findings.

The questions associated with the recess appointment power are likely to be of interest to a wide array of scholars, as well as to those activists, observers, and practitioners interested in appointments to the federal judiciary. This book is written for the scholarly audience, and will certainly be well-received by that audience. The substantive chapters all employ highly sophisticated statistical methods that are appropriate to the questions being asked. The lengthy discussion of the statistical approach in each of the substantive chapters is of course important and would be of interest to scholars in this area. This material, however, makes this book less accessible to the more casual reader interested in judicial appointment politics. Each of the four substantive chapters in this book holds up well on its own – so well, in fact, that some explanations and illustrative examples are repeated in multiple chapters. Some better editing of the book as a whole could have resolved this frustration. In addition, Chapter 3 in particular would have benefitted from better editing in general. The hypotheses in this chapter, for example, are not explained very well, and some of them are contradictory or at the very least worded confusingly. The problem associated with re-reading some of the same examples and stories in multiple chapters in the book is offset, however, by the clear focus throughout the book on the questions related to the [*45] strategic use of recess appointments by presidents and the changes in voting behavior of judges while awaiting confirmation. Relatively minor concerns about editing do not detract from the important contribution that Graves and Howard have made to our understanding of judicial appointment politics, both historically and in the modern context.

REFERENCES:
Epstein, Lee and Jeffrey A. Segal. 2005. ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS. New York: Oxford University Press.

Goldman, Sheldon. 1997. PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN. New Haven: Yale University Press.

Nemacheck, Christine L. 2007. STRATEGIC SELECTION: PRESIDENTIAL NOMINATION OF SUPREME COURT JUSTICES FROM HERBERT HOOVER THROUGH GEORGE W. BUSH. Charlottesville: University of Virginia Press.

Scherer, Nancy. 2005. SCORING POINTS: POLITICIANS, ACTIVISTS, AND THE LOWER FEDERAL COURT APPOINTMENT PROCESS. Stanford: Stanford University Press.

AFFIRMATIVE ACTION FOR THE FUTURE

by James P. Sterba. Ithaca: Cornell University Press, 2009. 144pp. $49.95 Cloth. ISBN: 9780801446078. Paper $17.95. ISBN: 9780801475917.

Reviewed by Martin J. Sweet, Assistant Professor of Political Science, Honors College, Florida Atlantic University. Email: msweet4 [at] fau.edu.

pp.38-41

It has been about 15 years since Daniel Farber called the debate over affirmative action “outmoded” (Farber, 1994). Farber and other scholars claimed that the academic rhetoric had become “a bitter stalemate,” “boring” “hypocritical,” “intractable,” “caustic and draining,” and a “ridiculous misallocation of scarce [academic] resources.” Yet there have been two rather large developments in the field in the intervening years. First, a series of academics have undertaken empirical research projects evaluating the efficacy of programs. A group of economists and political scientists quietly amassed a rather large catalogue of evaluations, largely, but not exclusively, pessimistic about the efficacy of the policy. The popular book THE SHAPE OF THE RIVER similarly, albeit with some rather open questions about methodology, ventured down the empirical path and took a more sanguine view of the results (Bowen and Bok, 1998). Second, the United States Supreme Court, for the first time since the KOREMATSU v. U.S. (1944) decision upheld a race-based facial classification scheme under the guise of strict scrutiny, in GRUTTER v. BOLLINGER (2003). The Supreme Court ruled in both GRUTTER and GRATZ v. BOLLINGER (2003), that diversity provided public universities a compelling state interest in creating affirmative action programs. Of course, the undergraduate admissions scheme at issue in GRATZ violated the Equal Protection Clause of the 14th Amendment, but the Court upheld the law school admissions program in GRUTTER. James Sterba combines these two developments and offers a spirited empirical minded defense of affirmative action and advocacy of the use of diversity as a justification for affirmative action. He does more than that, of course, as I detail below – but the really “new” contribution Sterba makes here is an academic defense of diversity to justify affirmative action.

Sterba’s advocacy of affirmative action is grounded in a long litany of economic and social indicators that find African Americans (and often Hispanics) less well off than white (and non-Hispanic) counterparts. In chapter 1 entitled “Current Racial and Sexual Discrimination,” he presents statistics on infant mortality, loan rejection rates, earning power, and environmental inequities that all point toward extant differences between individuals based on race. Sterba similarly argues that women are behind their male counterparts on a bevy of additional economic and social measures. Given his chapter title, it is not surprising that to Sterba this is all “considerable evidence of existing racial and sexual discrimination” (p. 14).Yet what must be noted about Sterba’s evidence, and of which he admits, is that it is almost exactly the same type of [*39] evidence of “societal discrimination” that has been routinely rejected by the courts. It is certainly bothersome to those for whom equality is an important issue that all of these statistics point in a similar direction. Yet Sterba does not undertake a systematic look at black and white outcomes. Is it really true that there are no cases where there is no statistical difference between similarly situated black and white individuals? Surprisingly, given the focus of the overall argument, Sterba fails to present statistics related to diversity and education. How does environmental racism matter for obtaining a critical mass of black students in the classroom so as to provide for a non-monolithic minority point of view?

Chapter Two provides a legal history of affirmative action, noting the prominent legislative and judicial efforts within the affirmative action narrative. Sterba’s argument about diversity depends, in large part, on not only the legitimacy, but the grandiose importance of the Supreme Court’s case in GRUTTER. GRUTTER to most legal observers was certainly a monumental case – having a race-based program upheld under the aegis of the Supreme Court while using strict scrutiny was exceptionally noteworthy. But one has to wonder just how important a case GRUTTER really is. This is an issue for all of us when studying judicial decisions, but especially here, where Justice O’Connor was the sole Justice to be in the majority in both 5-4 University of Michigan cases. Now that Justice Alito has replaced Justice O’Connor on the Court, there is some serious doubt of the continuing viability of the decision. Consider how the Supreme Court refused to apply GRUTTER in the education assignment cases, PARENTS INVOLVED IN COMMUNITY v. SEATTLE SCHOOL DISTRICT (2007). Sterba notes this issue, but it should have given him more pause. Sterba attempts to liken the education assignment cases to BAKKE (1978) – as plurality decisions with Kennedy, instead of Powell, as the swing vote. But what has to be noted is that now Kennedy, and not O’Connor, is the most left leaning of the conservative Justices – and Kennedy ruled against both of the University of Michigan programs. In short, it seems plausible that stare decisis could matter, but it is much more likely that GRUTTER is the new METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION (1990) – a case awaiting the proper vehicle to overturn it – rather than actually representing a sea change in how the judicial branch treats affirmative action.

In Chapter Three, Sterba strives to derive a neutral definition of affirmative action, one that will not easily sway discussions of the subject into partisan rancor. Sterba settles on “a policy of favoring qualified women, minority, or economically disadvantaged candidates respectively with the immediate goals of outreach, remedying discrimination, or achieving diversity, and the ultimate goals of attaining a colorblind (racially just), a gender-free (sexually just), and equal opportunity (economically just) society.” (p. 32). This seems like a fair description of what he defends throughout the book, and he should be commended for putting forth an honest description of his favored policy. Yet readers will quickly determine that there is a not a per se research question in the book. This is an advocacy book from [*40] start to finish, and thus the neutral terminology seems slightly incongruent with the rest of the book.

Chapters Four, Five, and Six discuss outreach affirmative action and remedial affirmative action. Sterba laments that the Court in CITY OF RICHMOND v. CROSON (1989) read the 14th Amendment to impose such an onerous standard for governments to identify discriminatory systems before instituting remedial programs. He also argues that the Court should treat “benign” and “invidious” discrimination differently, in contrast to the Court’s rulings in CROSON and ADARAND v. PEÑA (1995). To his credit, Sterba also directly addresses five different criticisms of remedial affirmative action programs. But scholars will not find much new throughout this section of the book.

Chapters Seven and Eight advocate and defend diversity affirmative action. Largely, however, Sterba relies on GRUTTER for supplying the rationale for diversity, including quotes from the amici briefs. In a parenthetical, he suggests, without elaboration, that it takes between three and five minority students in a class of 30 to “contribute to class dialogue without feeling isolated” (p. 71). Given the set-up of the book, discussing “conditionality” (empirical evaluations of affirmative action), it was disappointing not to receive more here. Can any three black qualified students supply this added value to class dialogue, or are there certain types of black students needed? What types? Must there be special limitations on the other students in the class so that they too contribute to this class dialogue? Might we have to guard against admitting too many homogenous majority applicants? And if so, considering the very real situation of rolling admissions, who gets admitted and declined first? Are students then forced to register for particular classes? All too often Sterba mistakes the noble sounding idea of diversity with how these policies might actually play out. For example, in making his point about the value of diversity, he slips into some misleading anecdotes. Sterba points out that his “fast-talking chain-smoking New Yorker” partner, and a single minority student who recounted what was likely a hate crime in front of the class, had “significant educational benefits” for colleges and universities. (p. 72). Having a single professor or student different from the rest of the class, is entirely unrelated to the concept of “critical mass” at play in GRUTTER. Throughout these chapters, Sterba does skillfully take on affirmative action critics and some anticipated problems with his argument. Certainly in the micro-sense, he is quite strong and adept at finding fault with his critics.

What is most lacking in this book is, ironically, perspective of the other. Instead of being gracious toward those with whom he might disagree, Sterba comes across as snide and condescending. Rather than take on one who might suggest that it is simply always wrong for the government to provide racial preferences, he derides “No one in their right mind thinks that racial preferences are always legitimate or always illegitimate” (p. 76). And rather than engage with the literature about the actual outcomes of diversity (see Putnam, 2007), he suggests that if the statistics he provides about the need for affirmative action do not move us, we “[are] unconcerned . . . about [*41] widespread existing discrimination” (p. 102), “do not call for . . . the federal government to prosecute . . . discrimination” (p. 102), “[are not] interested in overturning [bad] Supreme Court decisions”(p. 102), and “are unsupportive] of the large increases in spending that are needed to provide all students in the United States with at least a K through 12 quality education” (p. 102). Much of the book has a tone that one might hear at a dinner party where all “good people” surely think “the right way.”

This book will certainly appeal to those who simply want to read that affirmative action will move us toward racial equality. If one wants scholarly investigation into how affirmative action might look in the future, and empirical information that defends and advocates for diversity affirmative action, Sterba has fallen short.

REFERENCES:
Bowen, William G. and Derek Bok. 2000. THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS. Princeton, NJ: Princeton University Press.
Farber, Daniel A. 1994. “The Outmoded Debate Over Affirmative Action.” CALIFORNIA LAW REVIEW 82:893-934.

Putnam, Robert D. 2007. “E Pluribus Unum: Diversity and Community in the Twenty-first Century – The 2006 Johan Skytte Prize.” SCANDINAVIAN POLITICAL STUDIES 30(2) 137-174.

CASE REFERENCES:
ADARAND v. PEÑA, 515 U.S. 2000 (1995).
CITY OF RICHMOND v. CROSON, 488 U.S. 469 (1989).
GRATZ v. BOLLINGER, 539 U.S. 244 (2003).
GRUTTER v. BOLLINGER, 539 U.S. 306 (2003).
KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).
METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 497 U.S. 547 (1990).
PARENTS INVOLVED IN COMMUNITY SCHOOLS v. SEATTLE SCHOOL DISTRICT NO. 1, 551 U.S. 701 (2007).
REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).

THE LAW/POLITICS DISTINCTION IN CONTEMPORARY PUBLIC LAW ADJUDICATION

by Bogdan Iancu (ed). Utrecht, The Netherlands : Eleven International Publishing, 2009. 250pp. Hardcover. €65.00/$104.00. ISBN: 9789077596654.

Reviewed by Dorit Rubinstein Reiss, UC Hastings College of the Law. Email: reissd [at] uchastings.edu.

pp.33-37

This book offers us a collection of essays addressing the interface between law and politics. It does not aim at defining law and politics or setting a clear distinction between them. Instead, the essays focus on “problem areas” – how do judges avoid being perceived as just another political actor while still subjecting politicians to the rule of law; how do judges handle corruption of other government actors; judicial impact on politically charged questions. Editor Bogdan Iancu describes as the common ground of the authors, the assumption that “. . . a blurring of the classical lines of division between law and politics in paradigmatic constitutional systems (constitutionalism in transformation) also affects systems’ transition to liberal democracy (transitional constitutionalism). This appears to impact negatively on the ‘civilizational capacity’ of liberal democratic Western constitutionalism” (p.11). However, even if all the authors share this approach and were brought together by it, that is not reflected in their chapters, whose subject matter varies substantially; nor do all the articles share the same methodology.

The common threads through the chapters are first and foremost the acknowledgement that the law/politics distinction is extremely blurry in today’s world. Second, is the focus on the border between the two – i.e., on areas where judges have to handle politically sensitive questions, where the distinction is even fuzzier. Third, all the articles focus on constitutional judicial review and constitutionalism. I was a bit surprised by that. In Iancu’s introduction, he attributes part of the blurring to the “rise of the regulatory state” and suggests that the law/politics distinction is especially problematic for judicial review of administrative action, where “none of the classical approaches seems to suffice” (p.7). In light of this language and the book’s title (emphasizing public law), I expected to see at least some discussion of how the law/politics distinction operates in the administrative sphere, but none of the articles focused on that more than in passing, and Iancu does not explain the omission. I would have liked to see more explanation of the scope of the topic, and possibly a change in the title to clarify that the book centrally addresses constitutional issues.

One of the book’s main strengths is the wealth and depth of information it includes, as will be seen from the discussion of the articles below. It covers different jurisdictions and different times, with the introduction starting from the 15th century. The reader will learn much. On the other hand, the book is more suitable for an [*34] informed audience. It assumes a high level of pre-existing knowledge. This allows examination of issues in depth in a relatively short (just over 200 pages) volume with nine full-length essays and two short responses. The price of that brevity, however, is that this book as a whole (as opposed to specific articles, for example Grimm’s chapter) will not be suitable for use in an undergraduate setting without extensive guidance. It would have been more accessible if it had included more background, and if steps had been taken to make the reading easier (for example, translating Latin phrases into English).

The individual articles are so dramatically different in methodology and content that I find it necessary to say a few things about each and refrain from any attempt—which could only be highly contrived and artificial—to create a thread that would connect them all.

Bogdan Iancu’s introductory essay establishes the ground for the rest of the book. Iancu highlights the tension between law and politics, emphasizing the role of law in constraining arbitrary use of political power but also the need to check and prevent the danger of arbitrary judicial power. He addresses several possible ways to solve that problem, including institutional separation and procedures, concluding they are insufficient. He calls for a substantive, though fuzzy and hard to apply, distinction between what is appropriate for judges to do and what is appropriate to politicians. The chapter then provides the reader with an overview of the rest of the book.

Dieter Grimm’s chapter on constitutional courts sets the ground for the following essays with a very rich and thoughtful discussion of the reasons for constitutional judicial review and the concerns inherent to it. The explosion of judicial review is placed in the historical context of the post-totalitarian European regime. Grimm carefully analyzes issues of judicial appointment, the need and the danger for judicial independence, and the effect of constitutional judicial review. His piece does not break new ground, but the analysis is extremely clever and sophisticated. It is also well written. This is a great essay to use as an overview of the pitfalls and strengths of constitutional judicial review, suitable both to experienced scholars and students.

Armand de Mestral and Jan A. Winter address how the Supreme Court of Canada and the European Court of Justice have handled politically sensitive questions. Neither court explicitly acknowledges a “political question” doctrine, but both take steps to avoid stepping into what they consider the province of the political branches, while they still work to constrain those branches to follow the rule of law and protect rights. The two authors support their argument through a case analysis, focusing almost exclusively on what the courts said. I found the approach more formalistic than I was comfortable with. The authors take the courts’ words extremely seriously and do not provide real analysis of the contexts of the different cases and potential political explanations for the courts’ behavior. For example, when discussing the Supreme Court of Canada’s decisions on the question of whether politically sensitive matters have enough legal [*35] questions to make them appropriate for judicial resolution (e.g. pp.43-44), at least some consideration of whether the court was acting to enlarge its power seems appropriate. The authors do not completely ignore politics – for example, they acknowledge that the extensiveness of proportionality review by the European Court of Justice depends at least in part on the extent of discretion accorded the member state in a given area (more discretion in agriculture leads to more lenient review). But even that seems formalistic and not sufficiently attuned to the realities of power. A more sophisticated political analysis would have made the piece richer.

Christian Joerges’ article examines how the appellate panel of the World Trade Organization (WTO) handled two sensitive issues on which the laws of the EU and the United States diverge – the administration of growth hormones to cattle and genetically modified products. In both cases the WTO found EU practices to violate the treaty, but Joerges found the panel’s approach much better in the Hormones case, using a “conflict of law” approach that would respect different entities’ choices in respect to the content of law while still imposing sufficient harmony to allow the system to operate. It is an extremely interesting analysis, although I would have liked a little more development of the way a conflict of laws approach to transnational disputes achieves that goal in practice, and as András Sajó mentions in his response, a little more development of the differences between the WTO panel and a court and whether those differences should matter to the approach. Sajó also emphasizes the problematic clash of values inherent in the panel’s decision.

Roderick Macdonald and Thomas McMorrow’s article criticizes the concept of “reasonable accommodation” used by the courts of Canada to offer cultural and ethnic minorities exemptions from legal and administrative practices. Macdonald and McMorrow see “reasonable accommodation” as reflecting an ethnocentric approach that treats the elite’s preferences as the standard, and the accommodations given cultural minorities as favors done from a position of power. They see the liberal approach to cultural and ethnic diversity – the non-discrimination paradigm – as placing someone (the elite member) in the middle and comparing the treatment of everyone else to the treatment of “the chosen one.” This is highly problematic because it does not afford groups real, meaningful equality. They suggest, instead, a legal pluralism approach that avoids one-dimensional distinctions and sees all groups and systems as equal. They see the report of the Bouchard-Taylor commission, which recommended mostly non-legal, inclusive, locally sensitive solutions, as reflecting the right approach. It is a thought-provoking argument, and the premise of respecting diverse influences on culture and not being ethnothentric is extremely appealing, and the authors make a compelling case. However, in relation to their practical and normative conclusions, I had several concerns. First, the cultural relativist approach embedded in the legal pluralist paradigm has some normative implications the authors do not sufficiently discuss. The approach is relatively problem-free when the question is the freedom to exhibit religious symbols, but it raises concerns in relation to other practices. The authors do not claim that all cultural norms are [*36] legitimate, but they say that the problematic ones (e.g. female circumcision, polygamy, child brides, stoning, chopping off hands of thieves – p.100) are prohibited by Canadian criminal law. Would keeping these prohibitions fit into a real pluralist approach that sees the norms of each group as equal? And if not, are the authors comfortable allowing the practice? And how to set the line? What about more subtle forms of discrimination not covered by the criminal law, are they legitimate?

Further, I share Iancu’s concern (p.15) about whether the approach, as described by Macdonald and McMorrow, gives guidance to judges faced with claims of non-discrimination and requests for accommodation. Should they simply reject such claims out of hand? Send the plaintiffs to a non-legal solution? The reaction to the Bouchard-Taylor commission’s report, from which the politicians distanced themselves, may suggest that the approach, even if normatively desirable (of which I am not sure), is politically unappealing and hard to apply. Finally, what about cases of discrimination pure and simple – hate speech, or just preferential treatment? I would have liked to see more discussion of how the legal pluralist approach interacts with non-discrimination principles and how it would work in practice.

Bernd Rüthers’ article addresses the place of law and lawyers in situations of social upheaval, focusing on the extreme transformations Europe underwent in the 20th century. He emphasizes, as a case study, the changes of regime in Germany, and especially East Germany. He structures the article around twelve hypotheses, and his main argument is that lawyers are closely connected to power. In times of upheaval and change of regime, lawyers go through a process of selection and “change of guard.” They also serve to promote zealously the arguments of the new regime through various legal tools – and sometimes the same lawyers do that for radically different regimes. It is a very insightful discussion, although a different structure might better preserve the flow of the argument.

Alexander Somek’s article criticizes the adjudication (and the general system) of the European Union institution. He sees the European Union as hiding its democratic deficit and the lack of influence of its citizens through a combination of three processes. The first is idealization – reformulating, in idealized form, existing institutions, rather than really reforming them. The second is de-politicization, i.e. not providing the citizens with meaningful political choices and a real influence on decision making, reserving that to European institutions that are not elected – the Commission and the Council of Ministers. Finally, through economic due process the European Court of Justice interprets rights and the treaty to promote unification and free market ideas, often at the expense of values dear to the member states, for example worker solidarity and equality. He demonstrates how the court weakened protections of workers through its interpretation of the treaty in a way that disallowed restrictions on wages, if these were the result of collective bargaining rather than minimum wage laws. He sees the ECJ’s behavior as unjustifiably eroding state autonomy and important values. [*37]

The last two articles focus on the transition of post-communist system and the role of judges in that process.

Adam Czarnota examines the way post-Communist systems dealt with their past, and demonstrates that, aside from occasional lustration (barring former communists from power) and few trials of former communists, the past is mostly ignored. He explains this by the transformation process being double faceted. On one hand, the institutions were often radically changed. On the other, some accommodation was usually reached with the previous ruling party (which was not, after all, ousted by force, except in Romania), and its continuing position of power deters “rocking the boat” by taking meaningful steps to deal with the past. He provides many examples from several post-Communist systems to support his fascinating analysis.

Iancu closes the collection with an article that examines the problems of constitutionalism in Romania. He highlights two problems. First, he notes the shallowness of the constitutional process in Romania –driven more by the desire to join the European Union than by any deep commitment to principles. He demonstrates this by comparing the constitutional transformation since the 1990s with the constitutional transformation in the beginning of the 20th century, in which there was such commitment. Second, he addresses the inability to seriously overhaul he judicial system because of the lack of independence and the depth of the corruption in it. The article offers much detail and many insightful observations. It is not, however, easy to read, and some of the issues could be better developed. For example, I would have liked an explanation of why the court became so suddenly politically active. Iancu hints that the court was acting to protect elites by guaranteeing the existence of criminal sanctions against defamation, but does not explicitly say so and does not develop who it is that the court is protecting.

THE HUMAN RIGHT TO A GREEN FUTURE: ENVIRONMENTAL RIGHTS AND INTERGENERATIONAL JUSTICE

by Richard P. Hiskes. Cambridge: Cambridge University Press, 2009. 182pp. Hardback: $90.00/£45.00. ISBN: 9780521873956. Paperback: $29.99/£17.99. ISBN: 9780521696142. eBook format. $24.00. ISBN: 9780511465956.

Reviewed by David Dehnel, Department of Political Science, Augustana College. Email: daviddehnel [at] augustana.edu.

pp.29-32

n this book, Richard Hiskes makes a case for incorporating environmental rights in national constitutions. He is motivated by his view that “Environmentalism needs a new and more muscular political vocabulary grounded in today’s central political ideas of human rights and justice” (p.2). To make his case he takes on a number of formidable philosophical challenges, including the fact that traditional liberalism has little to say about environmental issues, that rights language focuses on the individual while environmental degradation is a collective and reciprocal concern, and that environmental problems tend to be intergenerational in character. His handling of these challenges makes for an interesting exploration into of the philosophy of rights, but the fact that the book is thin on the legal, and specifically constitutional, dimensions of rights will make it of tangential interest to many readers of this review.

To account for the relatively recent appearance of environmental concerns on the human rights agenda, Hiskes coins the phrase “emergent rights” and develops a philosophical explanation for why we should not be surprised that human rights, though universal in character, nonetheless may change over time (Chapter 2). First, Hiskes notes that, although it has long been recognized that rights are closely connected to human identity, post-modern perspectives on the individual have recognized that human identity is malleable, not defined by a fixed “human nature.” Further, he asserts that rights define human relationships, either between individuals or between individuals and their government. Relationships and the rights that structure them are constitutive of human identity. Because relationships (and therefore identity) evolve over time, new rights can emerge. Finally, Hiskes posits that rights are defined in response to threats to basic human needs, and emergent rights are the appropriate response to emergent threats, such as our contemporary environmental crisis.

As Hiskes suggests, these considerations can be applied to other “emergent” human rights. A more formidable philosophical challenge lies in adapting the concept of rights to intergenerational moral obligations. The difficulty is that, for rights to be enforceable as a matter of justice, there must be a reciprocal relationship between the bearer of a right and the entity obliged to respect that right (p.10). Although individuals may have moral obligations towards those who are dependent on them, principles of justice are applicable only between [*30] moral agents in relationships of rough equality. We can harm future generations, but they cannot harm us. Hiskes responds to this challenge by articulating the concept of “reflexive reciprocity” in Chapter 3. This complex notion of reciprocity acknowledges each generation’s dependence on the vitality of cultural values across time. In light of this, Hiskes asserts that “Our successors are surely at our mercy to preserve our (and therefore their) physical environment, but we are also at the mercy of our own capacity to honor their human right to clean air, water and soil. If we do not do so we harm ourselves as well” (p.66). Apparently, we will not appreciate our own rights until we think seriously about the rights of future generations as well.

In pursuit of ideas such as emergent rights and reflexive reciprocity, Hiskes adopts the controversial idea of group rights. In the first place, it is often difficult to assign individual shares to environmental goods like clean water and clean air (p.19). Even if this can be resolved, Hiskes’ attribution of rights to future generations necessitates the recognition of group rights (p.63). While acknowledging that group rights are problematic, Hiskes argues that environmental rights avoid some of the pitfalls of group rights claims that have emerged from identity politics, because our imagined dialogue with future generations is about bridging the gap through shared identities (p.149).

Here as elsewhere in the book, Hiskes tries to make a virtue out of a necessity. Because of the power of rights language and the seriousness of environmental threats, we should find a way to apply that language to the threat (p.2). Because environmental threats implicate generations not yet born, we should adopt the concept of group rights (p.63). Because the enforcement of rights depends on principles of justice, we must develop a theory of intergenerational justice through reflexive reciprocity (pp.13, 24, 48). Because future generations cannot vote in the present, their rights must be constitutional in stature (p.131). Hiskes’ argument is nothing if not ambitious. His efforts to tackle these and other obstacles are provocative, if not always satisfying.

I hope that the above gives the flavor of Hiskes’ argument, though it does not do justice to the thoroughness of his analysis of the philosophy of human rights and intergenerational justice. In the remainder of this review, I will focus on some of the implications of his argument for legal institutions.

On the way to his conclusion that environmental human rights should be enumerated in national constitutions, Hiskes makes some interesting assertions about the nature of written constitutions. National constitutions serve the purpose because they are enforceable and because of their connection to deeply held values like human rights. At first glance, national constitutions may seem too parochial for problems like global climate change, but Hiskes sees national identity as the fulcrum on which local action and global necessity can be balanced.

As noted above, Hiskes sees environmental rights as resting on the recognition of communal obligations with future generations. For the imagined dialogue with the future [*31] (“reflexive reciprocity”) to generate something as substantial as intergenerational justice, we must see ourselves as members of the same moral community as our posterity. At the global level, such connections are simply too abstract. We feel a special connection to our own progeny, enhanced by the assumption that they will inherit the land on which we live (p.101). There is a danger, of course, that a preference for the rights of our own descendants over members of other communities will amount to a narrow nationalism (p.69). Hiskes believes, however, that nationalism need not be destructive if the national political process is democratic. In democracy, citizens not only share a common identity (as they do in totalitarian states), they also participate in the pursuit of common goals. Citizens in a democracy experience freedom as members of a community (Chapter 5), thereby taking a crucial first step toward a global construction of human rights (Chapter 6).

Having resolved the local/global dilemma by locating environmental rights at the national level, Hiskes contends that constitutions should be the locus of the new rights. He identifies several traits of constitutions that serve his purposes. Fundamentally, he asserts that constitutions and rights “have become wedded in most observers’ minds as the most common and efficacious method of governmental limitation” (pp.127-128). This statement glosses over the fact that environmental rights are among those that obligate government to act rather than limit its authority. Philosophically, Hiskes rejects the negative/positive rights distinction because all rights are founded in social relationships, contrary to “state of nature” theories (Chapter 2). That is a valid point, but constitutions deal with the structure of government (including the enforcement of rights), and the distinction between limitations on power and obligations to act does matter in that context. Here, Hiskes stops short of discussing issues of considerable interest to law and politics scholars.

Another trait of constitutions important to Hiskes is that “they are collective statements of a nation’s values, character, or identity” (p.128). Hiskes depicts constitutions as the legal expression of the moral community that binds together past, present and future citizens, and therefore as the logical locus for inter-generational environmental rights. Here Hiskes seems to be unconsciously universalizing the Anglo-American constitutional tradition, as when he declares that “Constitutions provide much of the tradition that binds individual citizens into a community with a recognizable past and future, and thereby a shared identity that is rooted both in stories of the past and in an anticipated future” (p.128). Many nations, of course, are much older than their constitutions. In most places, rights based constitutionalism is a recent development, if it exists at all.

Hiskes does not discuss how constitutional environmental rights would be enforced, and the book contains no hypothetical examples or discussions of policy implications. The book begs a number of questions of interest to law and politics scholars, such as: What sort of constitutional right might be implicated by global climate change? What governmental obligations would the violation of such a right [*32] imply? Would courts of law be empowered to create remedies? Who, if anyone, would have standing to sue on behalf of future generations? These of course, are the potential questions for another book, but I did feel somewhat cheated when I finished this book because Hiskes pushes hard right up to the edge of these questions. He endorses the “trumping” power of constitutional rights over ordinary legislation and asserts that environmental rights would “function to restrain actions by narrow (or narrow-minded) majorities that might be deleterious to long-term environmental protection” (pp.131-2).

In sum, THE HUMAN RIGHT TO A GREEN FUTURE is a provocative exploration of the use of rights language to address environmental issues. Readers interested in the philosophy of rights and justice will find a careful and well documented discussion of many of the major issues surrounding the expanding idea of human rights. Scholars of law and politics will find that the book stops short of addressing the implications of environmental rights for legal institutions.

WHEN IS DISCRIMINATION WRONG?

by Deborah Hellman. Cambridge, MA: Harvard University Press, 2008. 216pp. Cloth. $39.95. ISBN: 9780674027978.

Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: whitley_kaufman [at] uml.edu.

pp.24-28

The term “discrimination” has come to have strongly pejorative connotations in our culture. But as Deborah Hellman points out in her admirably clear presentation of the problem, there is nothing wrong per se with discrimination. All laws discriminate in that they favor certain groups over others and treat different people differently. Laws governing the issuance of drivers’ licenses discriminate both in terms of age and of driving ability; but not only is such discrimination not wrongful, it is the very purpose of the laws and it is a purpose that is socially desirable. So the question becomes, as Hellman aptly titles her book, WHEN IS DISCRIMINATION WRONG? Why are some kinds of discrimination taken to be morally troubling and constitutionally impermissible (e.g. racist or sexist distinctions) whereas others are beneficent and others simply neutral? This question is surprisingly neglected given how profound and important it is not just for the law but for politics and morality in general. No doubt a reason for the hesitancy of many scholars to address the question is the difficulty of the philosophical issues raised by this question; at the extreme, some scholars have simply given up altogether on the issue, calling the idea of equality an “empty” one; in doing so however they misinterpret the difficulty of the issue for its ultimate incoherence. Hellman provides us with a clearly written, intelligently argued, and well-informed book / treatise on not only the legal aspects of the question but the moral, political, and philosophical ones as well. She fearlessly dives into some extremely daunting and difficult subjects, such as moral theory, the philosophy of action, and political philosophy; unlike many legal scholars who often try to avoid such issues by implausibly insisting on the “autonomy” of law from philosophy. For Hellman, the question of discrimination is fundamentally a moral one and must be understood from the perspective of moral philosophy. In this she is to be commended for escaping the baneful influence of Legal Positivism, a doctrine that holds that moral questions should be kept sharply separate from legal ones. Hellman’s work is a sophisticated and welcome contribution to this difficult topic.

Hellman’s basic thesis is that discrimination is wrong when it demeans: “it is morally wrong to distinguish among people on the basis of a given attribute when doing so demeans any of the people affected” (p.7). Thus having separate sex bathrooms is not wrongful because neither sex need feel demeaned by being denied access to the other bathroom. This is a case where “separate but equal” is perfectly legitimate, given genuine concerns about privacy and so forth. In contrast, a bathroom which is limited to whites only is wrongful because it is demeaning to [*25] minorities, treating them as of lesser worth. For Hellman, this theory is grounded in the moral principle of equal moral worth or the equal dignity of all people: “to demean is to treat someone in a way that denies her equal moral worth” (p.29). However, demeaning requires not merely an expression of disrespect; for Hellman, also required is “that one’s actions have a certain efficacy”; “one needs a degree of power or status to demean another” (p.35). The first half of the book is devoted to spelling out this idea in some detail, and applying it to well-chosen cases, both real and hypothetical. The idea is an important one, though not without problems, as discussed below.

The second half of her book criticizes other approaches to explaining the wrongfulness of discrimination. In Chapter 4, Hellman argues against the concept of merit as being the basis of the ideal of equal protection. For her, merit is too “unstable” a concept to provide useful guidance, given that there is no way to provide a clear definition of what counts as merit. When casting an actor to play the role of Malcolm X, for example, it seems plausible that being black – looking like Malcolm X – is a legitimate form of “merit” (along of course with good acting skills). But then why is race the paradigm of a non-merit based classification in most other contexts? Her argument is not quite convincing here; it is hard to know what she means by “unstable” but presumably it means that it lacks an objective meaning. But this seems too strong; merit is a difficult concept but not a meaningless one, and it seems no more or less difficult to define than her own concept of “demeaning.” Still, she seems correct that merit, while important, is not the heart of the idea of equality.

Chapter 5 argues that the essential wrong of invidious discrimination is not, as many people might think, the fact that classifications are irrational, i.e. based on criteria that are not well-designed to achieve the end in question. Hellman makes the surprising claim that the “fit” between means and ends simply does not matter morally. The lack of fit is not sufficient to make a classification wrongful, because there might be other values at stake: e.g. to use a fairly inaccurate proxy characteristic because using a more accurate one would be too expensive. This argument is however unconvincing; it does not show that the inaccurate classification is morally irrelevant, only that it may be overridden by other legitimate values. Indeed, it assumes that the classification is at least somewhat accurate, otherwise it would be bizarre to use a wholly inaccurate classification simply because it’s cheaper. Hellman further argues that lack of fit is not necessary for a discrimination to be wrongful either; for example, she says that race is often a good predictor of other traits, including poverty and history of incarceration, but that it would be unacceptable to use it for this purpose.

Chapter 6 is the most problematic chapter, involving the notoriously difficult philosophy of action and intentionality. Hellman argues that the intention of the actor is wholly irrelevant to the moral wrongness of an act of discrimination, indeed even to whether the act is a form of discrimination at all (p.139). Such a view counters both common sense and also Supreme Court doctrine, which has repeatedly held that [*26] there is a crucial distinction between intentional discrimination and mere “disparate impact.” It would require a very strong argument to overturn this, but Hellman does not succeed in that respect. A large part of the problem is her slippage between various meanings of “intention.” She argues that the actor’s intention cannot be determinative given that we are often subject to unconscious biases, so that we may be wrongfully discriminating despite our best intentions. But this argument assumes a controversial and problematic notion of the unconscious (she also uses the term “subconscious,” presumably as a synonym) and also relies on social science data which is based on experiments that are so artificial that they of dubious relevance to the real world. Moreover, even if true, it does not prove the irrelevance of intention. For from the standpoint of moral theory an unconscious intention is morally problematic as well; Hellman confuses the conscious/unconscious distinction with the distinction between intentionality and lack of intentionality. (Her account also slips between the concept of intention in general and the idea of “specific intention,” which is a different thing; and between the ideas of ‘intention’ and ‘motive’ as well (e.g. p.157)).

More broadly, despite relying on the philosopher Elizabeth Anscombe, Hellman makes the very mistake that Anscombe’s Wittgensteinian account warns against: treating intention as an interior private mental entity that is added on to the action. Hellman’s notion of the “act itself” (p.149) as distinct from the intention is simply incoherent. The very idea of an act assumes intentionality; otherwise it is what philosophers call an “event” rather than an action. Her criticism of the Doctrine of Double Effect is also superficial. She mistakenly claims that it originates from Just War doctrine (p.152), and she engages in philosophical forum shopping by selectively citing a few moral philosophers who criticize the DDE. In fact, the criticisms she presents are not convincing (for a detailed defense of the DDE against such criticisms, see my JUSTIFIED KILLING: THE PARADOX OF SELF-DEFENSE, Chapter 5). And her caricature of the intention-based account as being interested only in “finger-pointing” at the wrongdoer rather than engaged in the “important work of providing a remedy for those who are treated unfairly” is simply bizarre. What is especially strange about this chapter is that it is wholly unnecessary to her argument. There would seem no difficulty in saying that the paradigm example of demeaning is the case of intentional demeaning, and that other example (even the unconscious ones) are derivative cases that are still wrongful, though not as obviously so as the intentional ones. Indeed, it is simply common sense that the worst violation of respect, the worst form of insulting and demeaning someone, is the fully intentional one. This is a fight that she need not have taken on. Given the centrality of intention to the law and morality in general, her argument would be even more convincing had she realized that it is entirely consistent with an intention-based morality. But her contention that intention is simply irrelevant is quite incredible.

The most important contribution of this book is the argument that wrongful [*27] discrimination is based in the moral wrong of demeaning someone. Intuitively there seems something right about this. Yet there seem to be many cases where one legitimately demeans another – e.g. dishonorable discharge from the military, or punishment (e.g. declaring someone “unfit for society). Hellman responds that some theories of punishment hold that it does not necessarily demean prisoners, but again she only cites a small number of philosophers who defend this view. However, an even more troubling concern is the vagueness of the notion of ‘demeaning.’ What precisely does it mean to demean someone? Hellman gives a variety of definitions; it is to “put the other down” (p.57); to “express that the other is less worthy of concern and respect” (id.); to treat the other as “second-class person” (p.48); to “disrespect” them (p.36); to “debase or degrade” someone (p.35) or “denigrate” them (p.52). The biggest single concern about her thesis is that these ideas are themselves so vague and in need of explication that they do not seem to provide a useful analysis of the idea of wrongful discrimination. Indeed, many of these ideas are already current in the literature (e.g. the cliché of “second-class citizen”), but they have not proven very helpful in deciding difficult cases. The worry is that this is a case of obscuram per obscuris.

Moreover, there is yet a deeper puzzle. Why does the idea of demeaning have two separate dimensions, the insult and the power or status capable of making the insult effective? If moral theory is the basis for her argument, then it is simply puzzling why there must be this second aspect. To insult, demean, or degrade someone is no less a moral wrong even if one lacks the power to materially affect the person. Those who have little power or status in society do not get a special exemption from the duty of respect for others. A part-time landlord who refuses to rent to people based on their age or sex (young men) does not wrongfully discriminate on Hellman’s account, since his action does not satisfy the power criterion (p.37). Her reasons are somewhat puzzling: apparently it has to do with the lack of power of the landlord, the “expressive” nature of the action, and the fact that young men are not a subordinated group in our society. It is unclear how these reasons work together; if the landlord refused to rent to blacks, presumably it would be wrongful (though she does not say). But why does she think that it is relevant whether those being demeaned “form a group that has been subordinated in our culture” (id.)? Morality clearly requires equal respect for every individual, not merely those who are members in a subordinated group. In Hellman’s theory, these elements seem quite ad hoc and arbitrary. But they suggest that perhaps she is mistaken to locate the problem in moral theory per se; arguably equal protection is a matter of political philosophy instead, here understood as a branch of moral philosophy having to do with the large-scale distribution of power, status, and wealth in a society. This would explain the special role of groups rather than individuals in equal protection doctrine, and also the important role of power and effectiveness. One might suggest then that discrimination law, rather than being grounded directly in the abstract moral principle of equal respect, is specially concerned with a particular political [*28] problem, the famous problem of “tyranny of the majority.”

In any case, Hellman’s work is an important and welcome contribution to the discussion, and is highly recommended for anyone interested in this extremely important and neglected question. One hopes this book will inspire more contributions of equally high quality to this fascinating yet extremely difficult and complex debate.

REFERENCE:
Kaufman, Whitley R.P. 2009. JUSTIFIED KILLING: THE PARADOX OF SELF-DEFENSE. Lanham, MD: Lexington Books.

JUSTICE KENNEDY’S JURISPRUDENCE: THE FULL AND NECESSARY MEANING OF LIBERTY

by Frank J. Colucci. Lawrence, KS: University Press of Kansas, 2009. 264pp. Cloth $34.95. ISBN: 9780700616626.

Reviewed by Helen J. Knowles, Department of Political Science, State University of New York at Oswego. Email: helen.knowles [at] oswego.edu.

pp.19-23

When I was invited to review JUSTICE KENNEDY’S JURISPRUDENCE: THE FULL AND NECESSARY MEANING OF LIBERTY, by political scientist Frank J. Colucci, I initially resisted because of my concerns about a potential (or, at the very least, perceived) conflict of interest. The review request was, after all, made to the only other author of a book about US Supreme Court Justice Anthony M. Kennedy (Knowles 2009). In response, the editor of the LAW & POLITICS BOOK REVIEW assured me that it was this aspect of my cv that made me the natural choice to write about Colucci’s work. I would like to think that this is a recognition of the extent of my knowledge about Kennedy’s jurisprudence. After reading Colucci’s book, I am compelled to reach a different conclusion. As the Justice at the ideological center of the Court, Kennedy is repeatedly referred to as the “man in the middle” – “the true balance wheel of the court” (Bradford Berenson, quoted in Brust 2003, 25). However, it clearly requires an act of academic bravery to attempt to formulate a convincing argument that this wheel is neither squeaky nor in need of another tire. In other words, it is no small task to arrive at affirmative conclusions when “survey[ing] the larger body of Kennedy’s writings to determine whether he applies a consistent approach to constitutional interpretation” – as Colucci and I have both done (Colucci’s statement that prior to publication of his book “no one” had yet done this notwithstanding (p.1)).

“Our obligation is to define the liberty of all, not to mandate our own moral code” (CASEY, 850). Paradoxically, this quotation, from the joint opinion in PLANNED PARENTHOOD v. CASEY, makes four appearances in the first two chapters of JUSTICE KENNEDY’S JURISPRUDENCE – in which Colucci seeks to understand Kennedy’s interpretations of individual liberty and dignity by drawing on his opinions in LEE v. WEISMAN, LAWRENCE v. TEXAS, and ROPER v. SIMMONS (chapter 1); and his abortion opinions (chapter 2). The paradox lies in the fact that this book reaches its conclusions by arguing that Kennedy seemingly does the one thing that he disavowed in CASEY. Using the Justice’s own words from his Supreme Court confirmation testimony, Colucci states: “Kennedy employs a consistent jurisprudence based on what he considers the ‘full and necessary meaning’ of liberty,” a term which “embodies a moral concept that judges must independently enforce” (pp.1, 10). This concept, which perhaps might also be described as consisting of a collection of “substantive moral ideals,” is “stated in the text of the Constitution.” However, Justice Kennedy does not fulfill his judicial duty “to discover the true nature” of these [*20] ideals by employing the originalist principles and methods favored by some of his more conservative colleagues. Instead, he draws upon an understanding of the proper judicial role that “in rhetoric and substance shares many similarities with the presumption of liberty recently advocated by Randy Barnett” and the “moral reading of the Constitution championed by theorist Ronald Dworkin and former Justice William J. Brennan” (pp.3, 5, ix-x). This is a novel conclusion that I would have liked to see Colucci develop in more detail. However, it is possible that had he done so, he might have demonstrated that connecting Kennedy’s opinions to elements of these three individuals’ divergent legal philosophies exposes the inconsistencies in the Justice’s jurisprudence.

In order to paint his portrait of Kennedy’s jurisprudence, Colucci largely confines himself to analyzing and drawing upon the Justice’s own words, an effective approach for a “judicial study” (Colucci draws a distinction between his book which is this type of work –“focusing on particular aspects of a justice’s tenure seeking ‘to illuminate the judicial process’” – and the “full-life study” that is a judicial biography) (p.194n42, quoting Posner 1995, 516). However, in the first two chapters he also makes use of materials that draw him away from solid methodological ground. Colucci encourages us to take Justice Kennedy’s Catholicism seriously by comparing the rhetoric and substance of a number of his opinions to papal documents pertaining to human life, dignity, and the vocation of women. While Colucci chooses his words carefully, arguing that Kennedy’s religious beliefs “likely inspire” and “profoundly shape” his “reliance on liberty and human dignity,” he offers a disclaimer: “I offer no deterministic argument” (pp.31, 200n74). This is essential because, as one might expect from a Justice who values his personal privacy as much as he does, Kennedy does not make public statements about his religion (it is worth noting that the one source cited by Colucci for information about Kennedy’s Catholicism – a Supreme Court Historical Society website – no longer exists). Therefore, in a book that is devoted to, and indeed spends a great deal of time employing Kennedy’s own words, I remain unconvinced that the discussions of his Catholicism are substantively and methodologically meritorious.

By contrast, as has become clear in recent years, the papers of former Justice Blackmun do offer valuable windows into the decision-making processes of the Court’s members, and Colucci is right to make use of these materials. However, his reading of the notes that Blackmun took after meeting with Kennedy to discuss the distribution of labor for the joint opinion in CASEY offers a cautionary tale. Linda Greenhouse perfectly captured one of the challenges confronting researchers who use these materials: “deciphering Harry Blackmun’s notes became easier over time but remained a challenge. . . . [T]here were some passages that simply remained indecipherable” (Greenhouse 2005, 254). This is what we might call the problem of ‘the supremely illegible.’ When reading notes whose legibility makes their content questionable, it behooves the researcher to be especially careful when he or she reaches interpretive conclusions that are [*21] attractive because of their ability to fortify one’s main arguments. Colucci concludes that Blackmun wrote, on two separate lines, “can I jam some” and “RC agony and Harlan” (p.50). Readers are encouraged to form their own impressions of Colucci’s interpretive efforts. Here, it is important to note that there is agreement about Blackmun’s observation that as a Catholic Kennedy found the abortion cases particularly agonizing. However, no other scholarly interpreter of these notes concludes that Blackmun wanted to “jam” something (the jury is still out on whether he wrote “Harlan” or “traitor”) – after all, there is no evidence that he was crafting an opinion that he wanted Kennedy to join. Indeed, there is agreement that Blackmun was actually trying to decide whether he could “join some” of the joint opinion (which he eventually did) (Ward 2005, 27; Ward & Weiden 2006, 176).

Many of the aforementioned concerns about the methodology and substance of JUSTICE KENNEDY’S JURISPRUDENCE were alleviated when I read chapters 3 and 4, in which Colucci addresses his subject’s free speech and equal protection opinions respectively. These chapters nicely complement each other because they deal with two areas of the law in which Kennedy exhibits a very strong commitment to what Pete Wilson, the former Governor of, and US Senator from Kennedy’s home State of California once described in the following way: “I think it strikes him [Justice Kennedy] as terribly unfair that anyone’s individual potential should be in any way limited by their being classed as a member of a group, and treated in accordance with their group membership, rather than what they deserve to receive as individuals” (quoted in Rosen 1996, 86). Surveying a very large range of cases, Colucci seeks to demonstrate that Kennedy’s words in TURNER BROADCASTING SYSTEM v. FCC animate all but a very small percentage of his free expression opinions: “At the heart of the First Amendment is the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration and allegiance” (TURNER, 641). The same underlying principle of treating individuals equally, as individuals, is evident in the gay rights and race relations cases discussed in chapter 4. These are cases in which, Colucci argues, the principles of Kennedy’s theory of “neutral individualism” are most evident when he invokes either the words or spirit of Justice Harlan’s dissent in PLESSY v. FERGUSON (Kennedy agrees with Harlan that the Constitution “neither knows nor tolerates classes among citizens,” but departs from his more absolutist “color-blind” language) or Chief Justice Warren’s opinion for the Court in BROWN v. BOARD OF EDUCATION (that segregation of individuals by race “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone”) (PLESSY, 559; BROWN, 493-4).

One might be forgiven for thinking that chapter 5, entitled “Splitting the Atom of Sovereignty: Dignity and Divided Power” and prefaced by a quotation from Kennedy’s concurring opinion in UNITED STATES v. LOPEZ, is about federalism. However, as is the case with all the chapters in this book, multiple [*22] areas of the law are addressed. With a refreshingly critical eye that is not cast upon the issues analyzed in the other chapters, Colucci questions what Erwin Chemerinsky has appropriately described as the Rehnquist Court’s “assumptions of federalism,” theoretically and historically problematic assumptions which, Colucci persuasively argues, underpin Kennedy’s oh-so-catchy atomic separation of powers metaphor (Chemerinsky 2006). Indeed, one might be tempted, here, to borrow Gerald Gunther’s famous description of strict scrutiny, because this chapter of JUSTICE KENNEDY’S JURISPRUDENCE strongly suggests that Kennedy’s understanding of the limits on federal power is fatal in theory and in fact (Gunther 1972).

There are occasions when Colucci struggles to incorporate his central argument into his analysis, thereby weakening the overall cohesiveness of his book. However, it should be noted that, on its own, the concluding chapter, entitled “Liberty above Democracy,” has the potential to make a valuable contribution to the literature on Justice Kennedy. Indeed, for undergraduate judicial politics and Supreme Court courses, this chapter could certainly play an important role in class discussions. Kennedy’s majority opinions in BOUMEDIENE v. BUSH and KENNEDY v. LOUISIANA, and the per curiam opinion in BUSH v. GORE (which Kennedy is generally acknowledged to have played a significant role in writing) are used by Colucci to “exemplify not just Kennedy’s critical role in expanding judicial power but his larger interpretive approach” (p.172). This exemplification goal is certainly achieved in this chapter where, it is important to note, references to Kennedy’s Catholicism are notable by their absence.

My own research about Justice Kennedy has made me acutely aware of both the obvious and the more nuanced elements of the disagreements that dominate the jurisprudential debates in which Kennedy frequently engages with Justice Scalia – debates that I have on occasion referred to as comprising a “dialogue on liberty” (Knowles 2009, 119). Upon finishing JUSTICE KENNEDY’S JURISPRUDENCE, I came to an entirely unexpected conclusion. The book makes a compelling (although unintentional, I suspect) case for the conclusion that it is Scalia, not Kennedy, who makes the most persuasive and emotionally satisfying arguments about his adversary’s judicial decision-making. This will no doubt surprise those who are aware that in THE TIE GOES TO FREEDOM I do not excoriate Justice Kennedy, and am far more sympathetic (as is Colucci) to his libertarian tendencies than to the strands of majoritarianism that one finds woven into Scalia’s opinions. However, what if Colucci is correct that the element of consistency in Kennedy’s decision-making is his personal adherence to his own independent, moral reading of both the text and underlying principles of the US Constitution? What if Kennedy’s jurisprudence is driven by his own “conception of the substantive nature” of the liberty that is a central “constitutional value” (p.186)? These conclusions appear, to this reader at least, to be very similar to those formed by Justice Scalia, who has often written that Justice Kennedy’s jurisprudence is shaped by his own “personal predilection” (CASEY, 984). Whether [*23] that is the case remains, of course, a matter of interpretation. However, what Colucci’s book does demonstrate is that we should all take very seriously the implications of the power possessed by the “man in the middle” of the current US Supreme Court, the Justice who, it appears, is still searching for the “full and necessary meaning of liberty.”

REFERENCES:
Brust, Richard. 2003. “The Man in the Middle.” ABA JOURNAL 89:24-5.

Chemerinsky, Erwin. 2006. “The Assumptions of Federalism.” STANFORD LAW REVIEW 58:1763-91.

Greenhouse, Linda. 2005. BECOMING JUSTICE BLACKMUN: HARRY BLACKMUN’S SUPREME COURT JOURNEY. New York: Times Books.

Gunther, Gerald. 1972. “In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection.” HARVARD LAW REVIEW 86:1-48.

Knowles, Helen J. 2009. THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY. Lanham, MD: Rowman & Littlefield.

Posner, Richard A. 1995. “Judicial Biography.” NEW YORK UNIVERSITY LAW REVIEW 70:502-23.

Rosen, Jeffrey. 1996. “The Agonizer.” THE NEW YORKER, November 11, 82-90.

Ward, Artemus and David L. Weiden. 2006. SORCERERS’ APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT. New York: NYU Press.

Ward, Artemus. 2005. “Roman Catholic Agony: Justice Anthony Kennedy and the Regime Politics of Abortion on the US Supreme Court.” Paper presented at the annual meeting of the Southern Political Science Association, New Orleans, LA, January 6.

CASE REFERENCES:
BOUMEDIENE v. BUSH, 128 S.Ct. 2229 (2008).
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
BUSH v. GORE, 531 U.S. 98 (2000).
KENNEDY v. LOUISIANA, 128 S.Ct. 2641 (2008).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
LEE v. WEISMAN, 505 U.S. 577 (1992).
PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).
PLESSY v. FERGUSON, 163 U.S. 537 (1896).
ROPER v. SIMMONS, 543 U.S. 551 (2005).
TURNER BROADCASTING SYSTEM v. FCC, 512 U.S. 622 (1994).
UNITED STATES v. LOPEZ, 514 U.S. 549 (1995).

THE GHOST OF JIM CROW: HOW SOUTHERN MODERATES USED BROWN v. BOARD OF EDUCATION TO STALL CIVIL RIGHTS

by Anders Walker. New York: Oxford University Press, 2009. 256pp. Cloth. $34.95/£22.50. ISBN: 9780195181746.

Reviewed by Christopher E. Smith, School of Criminal Justice, Michigan State University. Email: smithc28 [at] msu.edu.

pp.15-18

Dramatic events often define written history. The military battle, the revolt, the dynamic leader, the bold decision or shocking event that produces reverberating repercussions – these are the episodes that stand as monumental mileposts to guide the journeys through history that we learn and teach and remember. For the history of racial discrimination and civil rights in the mid-twentieth century, a list of such mileposts leaps instantly to mind: BROWN v. BOARD OF EDUCATION; Montgomery bus boycott; Little Rock Nine; Martin Luther King, Jr.; Emmett Till; and the Civil Rights Act of 1964. Our discussions and understandings of the causes and effects of history can lose a sense of detail and complexity as we focus on the mileposts, especially as we move farther away in time from the actual people and events. In the GHOST OF JIM CROW, Anders Walker turns our attention back to the fine details of the civil rights movement and argues that insufficient attention has been paid to the role of Southern “moderates” and their carefully calculated legal and political strategies as significant impediments to desegregation and the effectuation of civil rights for African Americans.

Walker, a legal scholar and historian, focuses on the actions of three Southern governors: J.P. Coleman of Mississippi, Luther Hodges of North Carolina, and LeRoy Collins of Florida. All three gained reputations as relative moderates because, unlike several of their regional gubernatorial peers, they did not assume the defiant, public stance of “standing in schoolhouse door” to overtly block desegregation efforts. Instead, they adopted a variety of legal and political strategies to subvert the perceived intent of BROWN V. BOARD OF EDUCATION as they pursued their thoroughgoing commitment to the maintenance of racial segregation. Moreover, due to their reputations for moderation and the actions of Lyndon Johnson, all three governors subsequently gained important federal positions through which they could, to varying degrees, use new powers to affect the civil rights movement and thwart efforts to combat racial discrimination. Coleman was appointed to the federal bench as a judge on the U.S. Court of Appeals for the Fifth Circuit. Hodges became Secretary of Commerce and Collins, in what Walker describes as an especially pivotal role, became director of the Community Relations Service, the federal agency responsible for mediation efforts between civil rights activists and local government officials. Walker’s examination of the governors’ activities in their federal positions provides especially illuminating and [*16] thought-provoking material about the issue of the actual impact of federal action on civil rights efforts.

In separate chapters on each of the three governors, Walker provides detailed descriptions of strategies and actions, including the extent to which these governors sought to emulate each other and shared information and advice. Their legal approaches used “strategic constitutionalism” as they sought to provide superficial compliance with BROWN while developing legal rationales for the maintenance of racial segregation. For example, rather than overtly resist or deny the legitimacy of BROWN, they sought to change their states’ laws in order to end race-based pupil assignment. At the same time, however, they instituted alternative assignment criteria that would maintain racial segregation. Capitalizing on the Warren Court’s use of social consequences-based evidence, as represented in Kenneth Clark’s “doll study,” they sought to generate “evidence” that African Americans suffered from deficiencies in “morality” – as evidenced by their numbers of out-of-wedlock children, hygiene, welfare dependency, and other attributes. As a result, they argued that African Americans were not yet ready for integration and implied that premature integration would harm white students through exposure to these social attributes. Coleman, in particular, in his later service as a judge on the Fifth Circuit, was able to refine his legal strategies to thwart civil rights efforts through his “ability to reframe resistance to civil rights in racially neutral, constitutional terms, something that he had begun to do while governor in the 1950s” (p.151).

These governors also undertook a variety of political efforts to defuse the push for desegregation. They looked for African Americans who would be willing to serve on state commissions and other advisory bodies that were intent on finding ways to maintain segregation. It was not too difficult to find some prominent, willing partners in the African American community among leaders of all-black institutions whose positions and authority might disappear in an integrated society. The governors could use these individuals to help them convey the notion that African Americans actually preferred segregation and, indeed, these governors actually believed that to be true. They also sought to offer inducements to African Americans to voluntarily choose to stay in segregated schools, such as offers of educational resources for separate institutions. However, they continually discovered that many African Americans adamantly opposed segregation and could not be so easily co-opted.

The governors also worked very hard to suppress the reactionary inclinations of the Ku Klux Klan and other extremist opponents of civil rights, including local law enforcement officials, who were inclined to use dramatic confrontations and violence as a means to thwart civil rights activists. These governors recognized that confrontations and violence drew attention from national new media, increased enforcement pressures from the federal government, and reinforced the worst images of white Southerners that affected public opinion elsewhere in the country. Thus the governors tried to increase the size and authority of state police forces under gubernatorial control as a means to [*17] reduce local sheriffs’ and police chiefs’ roles in and responsibility over law enforcement and order maintenance. As Walker notes, the efforts to centralize state governmental authority is an aspect of anti-civil rights efforts that has received little attention from scholars.

These three governors gained reputations as “moderates” because they did not advocate confrontations or orchestrate violence. In fact, they recognized that civil rights activists may have wished to trigger violent white attacks against peaceful marchers as a means to generate swifter and stronger federal government actions against segregation and discrimination. Thus they sought to prevent any such confrontations, not as means to prevent violence per se, but as a means to limit national attention to the continuation of racial discrimination in the South. One of Walker’s central points is that their success in earning reputations as relative moderates by virtue of choosing legal and political strategies should not obscure the recognition that these governors were thoroughly committed to the maintenance of racial segregation and made concerted efforts to thwart the civil rights aspirations of African Americans. More importantly, they actually succeeded in impeding civil rights progress because they chose sophisticated, non-violent strategies that tended to provide false reassurance to federal officials that progress was, in fact, being made. Walker argues that these “moderates” actually created the most significant impediments to civil rights progress and that they managed to perpetuate and spread various impediments when they moved from their statehouses and into the Johnson administration in Washington, D.C. For example, Walker argues that LeRoy Collins’s role as the federal mediator seeking to prevent violence in Martin Luther King’s second Selma march – a role in which he persuaded Alabama law enforcement officials to pledge not to repeat their violent attack on civil rights marchers and then used that pledge to push King to limit the march to a symbolic arrival at the Edmund Pettis Bridge rather than continue the march to Montgomery – ultimately undercut King’s objectives:

Yet, by encouraging King to abandon his plan for the march, Collins was also reducing the possibility that the protest might incite a violent response – precisely the factor that had made the first march such a success. While Collins appeared to be helping the movement by reducing the chance of violence, he was actually hurting the movement by ensuring peace. Without the shock of violence, popular support would not be mobilized behind federal legislation. (p.139)

Walker cannot claim that all of the details that he provides were not previously known. Indeed, he notes that when Coleman was nominated for the federal bench, Congressman John Conyers of Michigan testified that Coleman was “a ‘calculated legal technician’ who had manipulated ‘the judicial process in order to protect a racist social order’ in Mississippi” (p.141). Thus, while there is an awareness about some of the legal and political strategies undertaken by so-called Southern moderates, Walker provides new details about these strategies. He also provides new insights on how these governors emulated and communicated with each other. In addition, he illuminates the links between the governors’ actions [*18] within their states and their later actions as federal officials that impeded civil rights progress. Overall, he builds a strong case for recognizing scholars’ undervaluation of the significance of Southern moderates’ anti-civil rights efforts.

Walker used archival research to piece together the details of the strategies of and cooperation between these governors. The book provides very thorough citations to sources so that interested scholars can explore further any new details about the civil rights era that appear in the book. More importantly, he casts the significance of his study as being of direct interest to political scientists and legal scholars who examine law, policy, and social change:

By recovering this resistance [by moderates], we learn….[that] rather than the “hollow hope” that some historians have come to view it as, BROWN reemerges as an important evolutionary decision that pushed the South to curtail localized policing, rein in vigilante violence, expand welfare technologies, and modernize family law. (p.5).

He also presents his study as showing “how state leaders embraced a type of strategic constitutionalism that expands our understanding of how Supreme Court decisions influence state law” (p.5) as well as how the modernization of aspects of the South’s legal system did not necessarily advance racial equality. Walker is correct in highlighting these intriguing and important issues, and the evidence he presents to support these themes is illuminating and thought-provoking. One might wish that the book’s conclusion had provided a more extensive discussion of these themes. However, the evidence and themes are present as threads throughout the book so that interested scholars will find themselves thinking deeply about whether and how Walker’s study affects their own understanding of the civil rights era. After reading THE GHOST OF JIM CROW, it is likely that many of us will point our students to additional, less-recognized mileposts of history as we lead them through a journey of understanding concerning the complexity of the civil rights struggle in the South.

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