Vol. 30 No. 6 (July 2020) pp. 92-95THE US SUPREME COURT AND THE CENTRALIZATION OF FEDERAL AUTHORITY, by Michael A. Dichio. Albany, New York: SUNY Press, 2018. 294 pp. Hardcover $95. ISBN: 9781438472539. Paperback $32.95. ISBN: 9781438472522.
Reviewed by Staci L. Beavers, Department of Political Science, California State University San Marcos. Email: sbeavers@csusm.edu.
Michael A. Dichio’s THE US SUPREME COURT AND THE CENTRALIZATION OF FEDERAL AUTHORITY is a volume whose brevity (just 152 pages of text) belies its broad sweep across most of American history and extensive data collection and analysis. The book’s brevity also belies how challenging this work may be to grasp for a reader not already deeply immersed in the author’s subfield.
As a student of American Political Development (ADP), Dichio’s stated goal is to scrutinize “the Supreme Court’s role in national state expansion since the founding” (p. xxiv). In contrast to what he sees as a narrower focus within the ADP literature on Weberian bureaucracy and comparative political development (p. 2), Dichio turns his attention instead to the Supreme Court “as a key centralizer of federal authority” through its constitutional rulings (p. 2). While previous scholars have demonstrated the judiciary’s role in re-allocating power from the states to the federal government, Dichio’s primary contribution is the historical breadth of his data with an investigation spanning most of American history rather than focusing on any particular time period(s).
To that end, Dichio pulls together an extensive database of over 600 constitutional rulings from ratification in 1788 through 1997 to examine patterns across key issue areas as well as across multiple “dimensions of the federal government” (p. 65). His analysis reveals a generally steady pattern of rulings over the Court’s history that have directed power from the states to the national government. As he puts it, “the Court--through time and regardless of its ideological composition--has persistently acted as an important instrument of the broader central state, expanding federal authority over society” (p. 143).
Dichio’s method of case selection is intriguing: He identified “landmark constitutional decisions” for his database by scouring top “constitutional law casebooks and treatises published between 1822 [*93] and 2010” (p. xxiii). Specifically, he sought cases that were widely understood to have served as influential precedents since being handed down, and cases included in at least 6 of his separate reference sources made the cut (p. 32). Dichio used multiple methods to validate his database, including evaluating his identified cases against Fowler and Jeon’s (2008) “‘authority score’” of case citations (p. 33). Using this database, Dichio examined historical patterns of Supreme Court decisions’ impact on the balance of national versus state authority across a range of issues. Both decisions upholding federal policies and decisions striking down state policies (thus supporting federal over state authority) were coded as having directed power from the states to the central government.
Overall, Dichio finds that a resounding 60% of cases reviewed from 1789-1997 resulted in some form of centralizing of power with the national government (p. 39). Dichio asserts that, contrary to common narratives, the Supreme Court consistently rendered decisions that consolidated central authority a majority of the time. While acknowledging that the Court’s pattern of centralizing power wasn’t perfectly steady over time, he argues the data unexpectedly show a great deal of consistency. For example, despite the infamy of the DRED SCOTT V. SANDFORD (1857) decision and its blow to federal power in striking down the 1820 Missouri Compromise, Dichio’s data show that more than half of the Taney Court’s key federalism-impacting decisions actually favored centralized authority (pp. 72-73).
However, when Dichio claims that such findings indicate that “the empirical reality of the Court’s constitutional decisions belies American skepticism of central state authority” (p. 73), his argument seems to outrun his data. While his data and analysis certainly undermine assertions of judicial “skepticism of central state authority” (p. 73), his broader statement seems to overlook how often such decisions struck down policies that represented some form of the public will or engendered considerable backlash.
Dichio’s case selection method was designed explicitly to prevent contemporary perceptions of precedents from influencing which cases were incorporated in his dataset, and he also explains in a footnote his deliberate effort to avoid comparing the relative importance of the cases included in his dataset (p. 213). As a reader with a more behavioralist bent, I still found myself frustrated at the lack of contextualization of the Taney Court in particular. DRED SCOTT overshadows much of the Taney Court’s legacy for good reason, and Dichio’s decision not to confront widely-held [*94]perceptions of the Taney Court more directly seems like a lost opportunity to emphasize a key finding more powerfully. Interestingly, Dichio’s discussions of ABLEMAN v. BOOTH (1859) (pp. 70-71) and PRIGG V. PENNSYLVANIA (1842) (pp. 88-89) note Taney Court rulings that invalidated state-level efforts to undermine the institution of slavery. Thus, Dichio all but dances around the easy invitation for judicial behavioralists and/or critical race scholars to interrogate the extent to which the Taney Court’s role in centralizing authority was compelled by its members’ race-driven ideology and dedication to the institution of slavery, regardless of the impact on federalism. But this argument simply exceeds the scope of his particular investigation.
Dichio is writing for a specialized audience of advanced scholars already well-versed in American Political Development (ADP). Students of judicial behavior will likely appreciate the span of Dichio’s examination as well as his case selection methodology and data analysis, but it will be challenging for this book to resonate more widely. Readers familiar with constitutional history will likely end up skimming large portions of text that recap well-known Supreme Court rulings across the Court’s history, while those unfamiliar with ADP literature may find themselves struggling to sort out the framework into which Dichio’s work is intended to fit. Dichio’s early assertions about the arguments or schools of thought against which he is placing his argument are painted in broad brushstrokes, with little specificity as to what these arguments are or where the uninitiated reader will find them. Likewise, Dichio builds much of his data collection and coding on Richard Bensel’s “dimensions of central state authority” (1990), but the reader must go to the Appendix for a more in-depth discussion of the framework. It’s not until the book’s final chapter that Dichio more fully contrasts his argument with “constitutional moment theory” (p. 141), and in fact the extensive substantive footnotes also provide helpful background. The previously uninitiated might do well to start with the final chapter and the Appendix (and the footnotes!) for context and then jump back to the beginning as a strategy for getting a better handle on Dichio’s analysis. Grappling with Dichio’s arguments is ultimately worth the effort, but the effort is considerable for those who are not already well-versed in the foundations on which he builds.
CASES:
ABLEMAN v. BOOTH, 62 U.S. 506 (1859).
DRED SCOTT V. SANDFORD, 60 U.S. 393 (1857). [*95]
PRIGG V. PENNSYLVANIA, 41 U.S. 539 (1842).
REFERENCES:
Bensel, Richard. 1990. YANKEE LEVIATHAN: THE ORIGINS OF CENTRAL STATE AUTHORITY, 1859-1877. New York: Cambridge University Press.
Fowler, James and Sangick Jeon. 2008. “The Authority of Supreme Court Precedent.” SOCIAL NETWORKS 30: 16-30.
© Copyright 2020 by the author, Staci L. Beavers.
