Vol. 30 No. 3 (April 2020) pp. 47-52RECONSTRUCTING RIGHTS: COURTS, PARTIES, AND EQUALITY RIGHTS IN INDIA, SOUTH AFRICA, AND THE UNITED STATES, by Stephan Stohler. Cambridge, UK: Cambridge University Press, 2019. 264 pp. Hardcover $110.00. ISBN: 9781108493185.
Reviewed by Allyson C. Yankle, Department of Political Science, Radford University. Email: ayankle@radford.edu.
By conceptualizing judges as deliberative partners with their elected counterparts, RECONSTRUCTING RIGHTS: COURTS, PARTIES, AND EQUALITY RIGHTS IN INDIA, SOUTH AFRICA, AND THE UNITED STATES offers a novel approach to understanding constitutional interpretation by conceptualizing judges as deliberative partners with their elected counterparts. Stohler examines when the judicial branch engages in doctrinal innovation by utilizing case study of equality rights in India, South Africa, and the United States. The book provides a detailed and rich look at the signals between judicial actors and elected officials surrounding specific issues within equality rights. It is ambitious in its examination of equality issues in the United States, India, and South Africa and the limited amount of space leaves the reader wanting more discussion of not only the cases but also the implications of the study.
In the introductory chapter, Stohler begins with a series of controversial judgments from the South African Constitutional Court where the Constitutional Court, staffed with African National Congress (ANC) appointees issued a series of rulings favoring the interests of the apartheid-era National Party. In later cases, however, the interpretation swung back towards alignment with the interests of the ANC. Eventually, the Constitutional Court reached an interpretation that fell in line with the policy interests of the ANC. This story illustrates the ongoing signal and dialogues that occur between elected officials and judges, weaving together Bickel’s (1962) acknowledgement that multiple actors can, and do, engage in legal interpretation with Dahl’s (1957) assertion of the judiciary as partners in the political regime (p. 12). Stohler focuses on instances of judicial innovation where “the doctrinal holding and is supporting rationale clearly depart from established law or from the preferred views of members of the elected branches” (p. 23). In turn, this innovation may be rejected or accepted in future cases, depending on the reaction of the judiciary’s deliberative partners. The deliberative partnership is evaluated by five pieces of evidence, [*48] including (1) information about existing law; (2) the preferred legal interpretations of the other branches; (3) the legal interpretation of judges; (4) reactions to judicial decisions by the other branches; and (5) judicial reactions to the other branches’ interpretations in future cases (p. 24). Stohler concludes this chapter discussing how and why he chose to test his theory of deliberative partnership in equality cases in the United States, India, and South Africa.
The first unit of the book addresses equality rights in the United States. Each chapter in this section begins with a Supreme Court case within the specific area before jumping backwards to a piece of national legislation meant to address the specific issue of inequality. From the national legislation, Stohler brings together a wide range of primary sources to capture the policy positions of elected officials, party coalitions, and individual justices.
The deliberative partnership between the Supreme Court and elected branches is particularly evident in the second chapter where Stohler addresses equality rights regarding public education and school funding. Stohler demonstrates the deliberative process engaged in by progressives (namely President Carter’s Assistant Attorney General Days and the Supreme Court’s liberal wing) in REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE with a focus on the development of intermediate scrutiny as well as justifying race-conscious policies. Likewise, Stohler engages in a similar analysis of deliberation between conservative justices on the Supreme Court and their elected counterparts. Here, the focus is on decision in FULLILOVE v. KLUTZNICK and a split in the Supreme Court’s conservative wing where two justices, Rehnquist and Stewart, were committed to color-blindness interpretations, while other conservative justices and their counterparts in the executive and legislative branches sought alternative interpretations. It was only after a series of personnel changes on the Court that conservative justices and their deliberative partners came to a coordinated interpretation concerning equality in public education and school funding.
The second chapter is by far the most successful in clearly demonstrating how a deliberative partnership works. The author provides a detailed account supported by primary documents of the interactions and signals between the justices on the Supreme Court, the elected officials, and other political actors. Additionally, he explains how changing political environments and evolving judicial interpretations have impacted the doctrinal development in this area of case law. Finally, Stohler provides the readers with clear tables addressing when progressive and conservative deliberation resulted [*49] in either no doctrinal innovation, accepted doctrinal innovation, or rejected doctrinal innovation.
While Chapter 2 examines deliberation based around ideology and a limited set of cases, the third and fourth chapters address a greater range of issues and cases. Chapter 3 looks at equality in regards to employment and Chapter 4 considers equality in representation. This leads to framing the chapters in a way that discusses distinct issues together while also attempting to highlight the signals and interaction between the multiple deliberation partners. The complexity of the issues and the number of cases addressed in these chapters can be overwhelming. For instance, in Chapter 2, there are fewer than 20 cases used as evidence and the number of cases dramatically increases, more than doubling, in Chapters 3 and 4. The evidence and discussion concerning deliberative partnerships in these latter chapters is uneven compared to Chapter 2. Examining the deliberative partnerships based upon ideology and addressing each of the cases is a strength in Chapter 2 that provides compelling evidence for the deliberative partnership theory in a clear fashion. In the latter two chapters of the case study, Stohler switches to examining the deliberative partnerships using judicial interpretations and doctrinal tests. This affects how the evidence is presented and the complete picture of the deliberative partnerships does not become clear until the conclusions, which brings about clarity and helpfully summarizes the evidence presented.
The second unit of the book focuses on equality around employment reservations and education in India. The first chapter in the unit, on employment, also provides important background concerning the Indian Supreme Court. Like the chapters in the prior unit, Stohler opens each chapter in this section by addressing the history of both sets of policies in India. The first emphasis in each chapter is on the legislative history, the political party positions, or changes based on electoral coalitions; often all three points are intertwined. It is only once the initial groundwork is laid that the author brings India’s Supreme Court into the discussion. The chapter on employment reservation is direct in the discussion of contested and uncontested innovation to reveal the deliberative partnership between the Supreme Court where the judicial branch is active and innovative, while the deliberative analysis regarding education reveals that the Supreme Court has been more prone to rebuke by the elected branches of government.
The last substantive unit of the book addresses equality rights via the Equality Clauses in South Africa. Even more so than the previous unit on India’s Supreme Court, this chapter emphasizes the [*50] institutional processes in drafting the Equality Clauses, the position of the three major political parties regarding the Equality Clauses, and political party views on anti-discrimination and affirmative action. Stohler maps out how the ANC relied on judges and early cases to establish Equality Clause doctrine that aligned with the governing policy. Eventually, the justices that formed a bridge pushed for innovative interpretations of the Equality Clause based on notions of reconciliation. The ANC, however, soon sought to go beyond reconciliation and pushed for transformation of South African society via the Equality Clause that utilized racialized appeals to class politics. With the shift in policy goals in the elected institutions came a similar doctrinal shift on the Constitutional Court. Stohler notes that the there are some limits to the deliberate partnership between the Constitutional Court and the elected branches, but the final substantive chapter provides examples of interaction between the branches of government when establishing policy.
The final chapter provides a discussion about the relationship between deliberative partnerships and judicial behavior, judicial power, and legal rights. Deliberative partnerships can help us understand how legal interpretations evolve across different branches of government. In turn, this tells a story concerning legal empowerment, rather than judicial empowerment, where it is necessary to consider how legal actors beyond just judges can help shape legal doctrines.
By approaching evolving rights through the lens of deliberative partnerships, Stohler demonstrates how to incorporate a bottom-up approach of looking at changing legal rights as demanded from individuals and popular mobilization alongside a top-down approach, which focuses primarily on elite empowerment of courts. In turn, Stohler argues that it is possible, and even desirable, to keep both approaches in mind while examining the development of rights in a legal system. Finally, the author concludes with a brief discussion of the normative appeal for deliberative partnerships as it addresses the tension between democratic self-government and individual rights. The implications and discussions addressed in the concluding chapter were insightful, but missing in the substantive chapters. The inconsistency in addressing these issues throughout the text weakened the overall impact of these meaningful contributions.
The book utilizes a great deal of information to understand deliberative partnerships in the United States, India, and South Africa. The scope of the book is impressive, but leads to uneven [*51] treatment and discussion. There are places where the framework is particularly clear, such as in Chapter 2 where the deliberative partnerships are discussed in relation to the ideological coalitions. This framework, however, is not employed in any of the other chapters in as clear of a manner, making it difficult to follow the sheer volume of evidence that Stohler has so carefully collected. Likewise, both the United States unit and India unit look at individual issues within a larger equality framework; in the South Africa unit, however, the distinct issue areas are collapsed and addressed in a single chapter. On the one hand, by looking at the bigger picture, the South African chapter becomes a compelling case as Stohler is able to weave the doctrinal thread that connects equality cases about a range of issues together. On the other hand, the difference in the type of analysis is noticeable because it affects how the judicial interpretations, elected branches, and aligned coalition members are discussed.
Another concern relates to understanding the deliberative partnerships. While Stohler does briefly address his case selection in the first chapter, there are other missed opportunities to directly, rather than implicitly, consider the effect of institutional differences. Reflecting on the case studies from India and South Africa, there is not just a difference in the institutional power and structure of the legal system, but also important differences in the electoral system and greater institutional arrangements. Both electoral systems and institutional arrangement of the elected branches would certainly impact the party coalitions and elected officials engaged in deliberative partnerships with the judiciary.
Despite these quibbles, Stohler provides a compelling argument for recognizing and understanding constitutional interpretation through the lens of deliberative partnerships. It is well-researched and well-written with a rich body of evidence that I strongly recommend for scholars and students in political science and law, particularly those concerned with questions of interbranch relationships, constitutional interpretation, and comparative studies.
CASES:
FULLILOVE v. KLUTZNICK 448 U.S. 448 (1980).
REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE 438 U.S. 265 (1978).
REFEERNCES: [*52]
Bickel, Alexander. 1962. THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS. New Haven: Yale University Press.
Dahl, Robert A. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” JOURNAL OF PUBLIC LAW 6(2): 279-95.
© Copyright 2020 by the author, Allyson C. Yankle.
