Vol. 16 No. 10 (October, 2006) pp.802-806
THE SUPREME COURT & AMERICAN POLITICAL DEVELOPMENT, by Ronald Kahn and Ken I. Kersch (eds). Lawrence: The University Press of Kansas, 2006. 400pp. Cloth $45.00. ISBN: 0700614389. Paper $19.95. ISBN: 0700614397.
Reviewed by Bradley D. Hays, Department of Political Science, University of Nevada Las Vegas. Email: bradley.hays [at] unlv.edu.
Several years ago, a prominent scholar working at the intersection of American political development (APD) and constitutional politics complained that the distinctive developmental and institutional concerns that once defined APD were in decline. Missing from much contemporary APD scholarship was an identity distinct from “history and politics” and a unique set of research questions that unified the subfield. Contributing to the subfield’s struggles, the countermovement to behavioralism’s stranglehold on political science, a movement that helped spawn APD, was largely successful and left APD without a hegemonic foil. The contributing factors to APD’s intellectual drift left much the discipline little more than historical analysis of political events or history done by political scientists. The question begged to be asked, “What’s the Point of APD?” (Whittington 1999).
In many ways, THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT, edited by Ronald Kahn and Ken I. Kersch, is an attempt to answer Whittington’s provocative question by demonstrating (1) the utility of relying on developmental approaches to analyze how the Supreme Court operates, and (2) offer an alternative to the methodological Janus of attitudinalism and positivism. The editors constructed the volume around the necessity of accounting for the interplay of “internal” and “external” influences on Supreme Court decision making (p.19). In essence, the Court engages in a unique form of political development when it (re)constructs constitutional meaning. Applying a developmental lens enables scholars to discover the layering of internal and external factors that result in constitutional change over time. Thus, as Kahn and Kersch note, the volume is unified by an “appreciation for the process of constitutional development as involving a complex interplay between factors internal to the Court itself as a legal institution called on to decide concrete cases according to preexisting law and institutional norms, and factors external to the Court, such as political, institutional, cultural, intellectual, and social forces” (p.3).
Inherent in the incorporation of internal and external considerations in the study of the Court is a critique of methodological approaches that place great emphasis on one or the other but not both. Throughout the volume, contributors offer a subtle (although not always subtle) critique of attitudinal and strategic approaches to judicial decision making for failing to consider the totality of influences and overemphasizing the external over the internal or vice versa. In other words, judicial decision making is not just attitudes, strategic behavior, culture, or law. It is a complex [*803] coalescence of all these factors. Echoing the criticisms offered by historical institutionalists, the volume contains strong and important challenges to more parsimonious (and positive) approaches to the study of the Court.
The volume is organized into four sections. Part One is dedicated to rethinking the law versus politics distinction. Part Two examines the Supreme Court within the governing political order (or regime). The third section contains two chapters that address the Court’s role in constructing authoritative constitutional meaning. The fourth and final grouping seeks to elucidate how courts construct constitutional inclusion. The divisions are useful; however, many of the contributions could easily fit within two or more of the sections, which is a credit to their scholarly breadth and insight.
There is no way to do justice to the ten contributions without turning this review into a tome. It should be noted that most chapters deserve a complete review on their own, but a brief overview is appropriate as an indication of the breadth contained within the volume. Mark A. Graber provides a rousing start by using cases canonical to the strategic school to demonstrate that “[t]he legal roads to ROOSEVELT and MCCARDLE, as well as the actual judicial decisions in those cases, were paved by a legal, strategic, and attitudinal mixture” (p.60). Graber notes that ROOSEVELT v. MEYER and EX PARTE MCCARDLE were consistent with established legal norms of the time but that those norms were fostered by strategic decisions by antebellum justices. Thus, strategic decisions, made in the absence of legal precedent, become legal precedent over time and lay the foundation for subsequent Supreme Court decisions that may appear strategic absent analysis of precedential legal norms.
Ronald Kahn argues that we can understand much of what the Court does through the “social construction process” (SCP) of judicial decision-making. Interestingly, Kahn notes that we can understand the divisions on the Court, not by relying on overly simplistic categories like liberal and conservative, but by those justices willing to engage in the SCP and those who are not (i.e., originalists). Mark Tushnet argues that the Supreme Court can “simultaneously act against parts of the political system while at the same time collaborating with other parts” (p.117). In essence, the national political system can use a “collaborative” Court to enforce national norms against sectional resistance. Howard Gillman provocatively asserts that partisan regimes consider judges as akin (although not identical) to appointed policy makers in bureaucratic agencies or regulatory commissions. As such, partisan regimes will turn to courts to achieve parts of their partisan objectives suitable to be realized through the courts. To demonstrate this point, Gillman examines the expansion of the national judiciary that occurred during the New Frontier and Great Society and the subsequent changes to constitutional law. Gillman convincingly demonstrates that regime aspirations can have profound consequences on the structure of the national judiciary and American constitutionalism. [*804]
Ken I. Kersch challenges the “constitutive story” that the New Deal constitutional revolution destroyed the old conservative constitutionalism by demonstrating how elements of the old constitutionalism persisted in the new constitutional order. Rather than seeing constitutional changes wrought by the New Deal as wholly new, Kersch suggests that old constitutional habits recur in the new order and only by accounting for the layering of new constitutional commitments on old constitutional rubrics can we understand the true nature of constitutional development.
In the next three chapters, Wayne D. Moore, Pamela Brandwein, and Julie Novkov address the development of constitutional meaning immediately following passage of the Civil War Amendments. Moore constructs a “model of pluralistic or multidimensional [constitutional] authority” (p.237) that accounts for the interaction between popular sovereignty and the institutions responsible for constructing constitutional authority. Using this model, Moore reveals that the Court did not settle the Fourteenth Amendment’s authoritative meaning but, rather, contributed to the Amendment’s pluralistic meaning. Brandwein uses linguistic techniques associated with Quentin Skinner and J. G. A. Pocock to (re)discover the rights rubric associated with late nineteenth century Fourteenth Amendment jurisprudence, which she labels “state neglect.” Using state neglect, Brandwein demonstrates how the Court in the SLAUGHTER-HOUSE CASES, UNITED STATES v. CRUIKSHANK, and THE CIVIL RIGHTS CASES (each long associated with conservative decision-making) was “politically centrist in that they rejected the preferences of both Democrats and the more radical Republicans” (p.276). Julie Novkov attends state court decision-making pertaining to interracial marriage following Reconstruction. Much as with Moore and Brandwein, Novkov rejects the idea that Supreme Court rulings hostile to racial egalitarianism (e.g., miscegenation laws) were an inevitable result of a predetermined path. Novkov conclusively shows that the subnational contest to define equality ultimately, but not necessarily, led to thin notions of equality.
Carol Nackenoff continues the discussion of equality by examining how the “Friends of the Indians” used lacunae in legal doctrine to reshape the political environment in which Native American citizenship was considered. Importantly, Nackenoff notes how courts did not exercise exclusive control over constitutional meaning during this period; rather, courts operated as one member of an interpretive community that helped negotiate the status of Native Americans in the late nineteenth and early twentieth century. Finally, Thomas M. Keck demonstrates the fluidity between “internal” and “external” influences by examining how the Center for Individual Rights’ external litigation campaign to overturn UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE was shaped largely by the Court’s internal decisions. Importantly, Keck’s chapter reveals that constitutional development contains an inherent feedback effect that makes [*805] attending to the interaction between internal and external influences requisite to understanding the nature of change in our constitutional system.
The book is a tremendous addition to the discipline that includes several “must read” chapters. (I have already updated my graduate public law reading list to include the chapters by Graber, Kersch, Brandwein, and Novkov.) But the book is not without flaws. While Kahn and Kersch gather an impressive group of scholars who effectively demonstrate the numerous advantages associated with a developmental approach, all the contributors come from the law and courts subfield. Of course, this is not surprising given that “Supreme Court” is in the volume’s title. However, one of the essential benefits of APD is its ability to carry on conversations across subfields. The volume would likely have benefited by including scholars with an alternative concentration so as to lay a stronger foundation for theorizing judicial action from a unit external to the courts (e.g., Congress or the presidency).
Perhaps related to selecting scholars from the same research tradition, the volume is methodologically narrow. This is not to say that the research employed is not rigorous. Far from it; most of the contributors put forth the best in historical, interpretive research. However, American political development has a history of methodological diversity that is largely absent from the volume. The absence may indicate that APD draws ever nearer to “history and politics,” but the absence is notable given the methodological diversity that once filled the subfield.
Finally, I found myself wanting greater clarity on the relationship between historical institutionalism and American political development. The editors claim that they wish to stimulate a research agenda for the developmental study of the courts, which means that this agenda must be, in some ways, distinct from the existing agenda articulated by historical institutionalists. When historical institutionalism rose to the fore, historical institutionalists spilled a good deal of ink articulating how their approach differed from (and improved upon) behavioral and formal approaches to the study of courts. Part of what made historical institutionalism unique (and important) was its sensitivity toward the constitutive effects of law and institutional arrangements on judicial actors (see Gillman 1999, at 67-68). Many of the volume’s contributions note that a developmental approach incorporates these advantages. So, is APD just a variation on, or subset of, historical institutionalism? Or, is there something unique that APD affords scholars of the courts? Since APD “seems uniquely concerned with how political events build on one another and not simply how they change” (Whittington 1999, at 45) it seems that the editors are correct that there is a unique agenda for development, but more attention will need to be paid to its distinctive contribution relative to other historical and interpretive approaches to the study of courts before the agenda truly emerges as unique.
Of course, my complaints are really an indication that, after reading nearly 500 pages, I wanted to read more. I can think of few higher compliments. Kahn [*806] and Kersch and the volume’s contributors may not have fully answered the question “What’s the point of APD?” but they begin the process and make it evident to readers of the volume that the answers will be fascinating, exciting, and insightful. The volume is requisite reading for any student of law and courts or political development.
Whittington, Keith E. 1999. “What’s the Point of APD?” CLIO 9:2, 5, 43-45.
Gillman, Howard. 1999. “The Court as an Idea, Not a Building (or a Game): Interpretive Institutionalism and the Analysis of Supreme Court Decision-Making.” in SUPREME COURT DECISION-MAKING: NEW INSTITUTIONALIST APPROACHES. Cornell W. Clayton and Howard Gillman (eds.). Chicago: University of Chicago Press.
CIVIL RIGHTS CASES, 109 U.S. 16 (1883).
EX PARTE MCCARDLE, 74 U.S. 506 (1869).
ROOSEVELT v. MEYER, 68 U.S. 512 (1863).
SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1973).
UNITED STATES v. CRUIKSHANK, 92 U.S. 542 (1875).
UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE, 438 U.S. 265 (1978).
© Copyright 2006 by the author, Bradley D. Hays