ISSN 1062-7421
Vol. 11 No. 9 (September 2001) pp. 453-456.
IN DEFENSE OF A POLITICAL COURT by Terri Jennings Peretti. Princeton: Princeton University Press, 1999.
371pp. Cloth $28.95. ISBN: 0-691-00905-8.
Reviewed by Thomas M. Keck, Department of Political Science, The University of Oklahoma.
Terri Jennings Peretti's IN DEFENSE OF A POLITICAL COURT is a lively and original work that seeks to apply the
insights of empirical political science research on the Supreme Court to the project of normative constitutional
theory. Peretti, Associate Professor of Political Science at Santa Clara University, argues that as an empirical
matter, "the Constitution lacks determinate meaning apart from that provided by Supreme Court justices and
that the justices' personal political preferences strongly influence their interpretations of the Constitution"
(p. 3). She then offers a normative defense of this state of affairs, insisting that "political motivation
on the part of the justices [is] critical to ensuring that the Court exercises its power of judicial review in
a responsible, legitimate, and democratic manner" (p. 3).
In the first section of the book, Peretti indicts "contemporary constitutional theory" for denying the
undeniable fact that Supreme Court decision making is motivated almost entirely by the justices' own policy preferences.
The whole project of normative constitutional theory, she argues, is an effort to exorcize subjectivity, politics,
and discretion from constitutional decision-making, and the whole project has been a failure. Thus, in chapter
one, Peretti reviews three schools of what she calls
"neutralist" constitutional theory: "interpretivism, noninterpretivism, and the process-perfecting
approach" (p. 14). Each of these variants of grand constitutional theory fails because they share an unanswerable
"fear of a political Court and political motivation in constitutional interpretation" (p. 4). All of
these constitutional theorists, from Robert Bork to Laurence Tribe to John Hart Ely, are trying to "reduc[e]
if not eliminat[e] judicial discretion and judicial subjectivity" and hence to solve the legitimacy problem
of Alexander Bickel's counter-majoritarian difficulty (p. 35). Each of these theorists "believe[s] that there
exists an objective theory of
constitutional interpretation, which (1) the justices can apply in a neutral manner, (2) the Court must apply in
order to protect its legitimacy and insure its survival, (3) successfully reconciles judicial review with democratic
values, and (4) enables the Court to play a beneficial 'apolitical' role" (p. 35).
In chapter two, Peretti canvasses the claims of the Critical Legal Studies movement about constitutional indeterminacy
and judicial subjectivity to argue that the grand constitutional theorists of chapter one "are simply wrong
on every count" (p. 35). She critiques the CLS scholarship, in turn, for failing to provide any "practical
answers to the questions of the Court's proper role in American democracy or of how an indeterminate Constitution
should be interpreted in the here and now" (p. 4). In chapter three, she critiques what she calls "the
skeptics and the
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idea of provisional review," by which she means Michael Perry, John Agresto, Paul Dimond, and other scholars
who have advocated a vision of judicial review in which the Court's power is checked in a number of ways by the
political branches.
In these three chapters, then, Peretti provides a useful and accessible critique of the constitutional theory literature,
but she treads no new ground. More significantly, her critique is curiously dated. Though she calls this section
of the book "The Failures of Contemporary Constitutional Theory," it is almost entirely a review of constitutional
theory from the 1980s, and leading contemporary scholars such as Bruce Ackerman and Cass Sunstein receive no substantive
engagement at all. She acknowledges her lack of attention to Ackerman and Sunstein in a footnote but does nothing
to explain or rectify this deficiency (p. 255-6, n. 12). Strangely, Ronald
Dworkin receives no significant treatment either. The very labels which Peretti uses to categorize "contemporary"
constitutional theory, moreover--interpretivism, noninterpretivism, the process-perfecting approach, critical legal
studies, and so on - are no longer much used in the literature. Peretti's book is a revised version of her doctoral
dissertation, which received the American Political Science Association's Corwin Award in 1991, and this section
of the book does not appear to have been significantly updated since then.
Peretti's argument in the second half of the book is more original and significant. In chapters four through six,
she draws on an extensive and helpful review of the behavioralist public law literature (though no original research
of her own) to argue that "political motivation in constitutional decisionmaking [is] legitimate and democratically
defensible" (p. 78). By "politically motivated decisionmaking," she means, "quite simply decisionmaking
motivated by a variety of political considerations-personal political preference (for particular policies and/or
case outcomes), partisan or interest group loyalties, or political feasibility" (p. 77). The
political character of the Court is a good thing, she contends, because it (a) enhances political representation;
(b) promotes the effectiveness of political checks on the Court; and (c) despite conventional wisdom, poses no
threat to the Court's legitimacy and power.
In chapter four, Peretti provides an exhaustive, ten-page review of fifty years of behavioralist research on judicial
decisionmaking and endorses the consensus conclusion that Supreme Court decisionmaking is motivated almost entirely
by the justices' own policy preferences (pp. 101-111). She then argues that such political motivation promotes
political representation by vindicating the values of the national governing coalition. As she notes, "to
the degree that the justices' ideological and policy views that serve as the premise of their decisions are consciously
evaluated and chosen by elected officials (and, through them, voters and interest groups), then value-voting is
neither arbitrary nor illegitimate. Indeed, a justice's personal values may be regarded as a decisionmaking proxy
that is representative or democratic in nature" (p. 111). Following Robert Dahl, Peretti argues that the President
and the Senate are generally successful in shaping a Court to their liking, noting a "consensus among scholars
[that] presidents historically and on average have enjoyed a 75 percent 'success rate'" in appointing justices
who decide constitutional cases in accordance with the president's policy views (p. 113). Conducting her own review
of this history,
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she found similar results (p. 114). Assuming this data is correct, we are still left with a significant question
of interpretation: should we view the glass, in this instance, as three-quarters full or one-quarter empty? Most
presidents, after all, appoint only a small handful of Supreme Court justices, and if one quarter of them turn
out to settle closely-divided constitutional issues in a direction to which the appointing president objects, it
is not clear that the presidents themselves would view this as an
effective mode of political representation. Thus, her conclusion in this chapter--that "the value premises
of a justices' decisions can be and largely are consciously chosen by the elected representatives through the selection
process"--is overstated (p. 119).
In chapter five, Peretti argues that policy-motivated decisionmaking promotes the effectiveness of political checks
on the Court and encourages the justices to engage in consensus building. Because they face a variety of institutional
constraints, she notes, policy-motivated justices must do their best to "marshal the support of other justices,
federal and state judges, the public, and other political leaders who can both assist the Court in achieving policy
success and impose sanctions against it" (p. 135). Following Walter Murphy's influential argument, Peretti
notes that this context will lead the justices to engage in "persuasion, negotiation, and accommodation"
(p. 135). All of this is to the good, she insists, because "[b]y moderating her policy preferences, actively
seeking policy support, and avoiding political sanctions, the policy-motivated justice is responding to and fulfilling
the purpose of political checks on the Court's power while also performing a consensus-building function"
(p. 137). Through a variety of both formal and informal mechanisms, the other political institutions successfully
check and constrain the Court's power and prevent the
development of judicial tyranny. Such political checks, moreover, work more effectively when judicial decisionmaking
is policy-motivated. If the justices were not concerned with the promotion of particular policies, but only with,
say, the articulation of objective legal principles, then they would simply ignore all of the political checks
on their power. If they really do care about successfully promoting policy, however, they will be induced to engage
in consensus-building activities. Peretti argues persuasively that a pragmatic judicial attention to political
contexts and constraints can have beneficial results, but it is not fully clear why this pragmatism will only work
if the justices are promoting their own policy preferences, and not if they are advancing a principled yet politically
acceptable reading of the Constitution.
In chapter six, Peretti argues that in addition to these benefits, policy-motivated decisionmaking also does not
incur some of the costs, which are usually assumed. In particular, reviewing the literature on the Supreme Court
and public opinion, she argues that such policy motivation has no negative impact on the Court's legitimacy or
power. The evidence simply does not support the claim that public support for the Court is a function of its apolitical
nature. Public support turns, rather, on agreement or disagreement with the Court's policy decisions, and, if anything,
it is a political Court rather than a hyper-legalistic one that will receive greater public support (p. 183). Peretti
argues persuasively that "public support [for the Court] is determined by the political acceptability of its
decisions rather than the
presence of persuasive constitutional authority for the Court's intervention" (p. 182). This calls to mind
"political" in the high sense of
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"statesmanlike." However, she has not provided enough evidence to support the very different claim that
a Court which is "political" in the low sense of the word--in that it decides cases on the basis of the
partisan identifications of the parties, for example, or a rankly instrumental calculation of the justice's preferred
results--will garner more public support than one which is perceived as legally disinterested.
This distinction is part of a more general set of questions I would raise about Peretti's conclusions, which she
advances in chapters seven and eight. Given her argument, she notes, we might be prompted to ask "why [we]
... should ... bother with a Court or Constitution at all" (p. 226). If the Court is just another political
agency, then why do we need it? Peretti's answer is that the majoritarian critique of judicial review is based
on a misconception of American democracy, which is pluralist, not majoritarian. Rather than a deviant institution
in a majoritarian system, the Court is a vital component of the American pluralist system. It provides an additional
access point in the pluralist political process, and it has a relatively greater capacity to protect minority interests,
due to its relatively greater independence from the majority will. As she puts it, "[t]he appropriate standard
in a pluralist system for determining an institution's legitimacy and value is not whether it is majoritarian or
subject to elections. Rather, that standard is the degree to which it adds to the number and diversity of arenas
in which groups can regularly and effectively advance their interests" (p. 216).
What, then, is the point of having a Constitution? In the last three pages of the book, Peretti grants that the
Constitution--understood as a text-based system of case law--imposes some constraints on judicial decisionmaking;
"each justice does not possess full freedom to rewrite constitutional doctrines in toto from [her] personal
views" (p. 253). In this light, then, is it more helpful to characterize judicial motivations as "personal
political preferences," as Peretti does, or as politically charged
constitutional ideologies? To my mind, this terminology makes a difference, and Peretti avoids some difficult questions
by shifting back and forth between politics in the high and the low sense of the word. H er argument, moreover,
exhibits a profound skepticism about the existence of rights, as the political and legal world she describes is
made up only of "interests." This skepticism may or may not be philosophically justifiable, but it is
dramatically at odds with the theory and practice of American constitutionalism.
As I hope this review makes clear, I found the book thought provoking, and while I am not fully persuaded by its
argument, I recommend it highly. Because it is generally well written and accessible (despite a fair amount of
unnecessary repetition), articulates an interesting and significant argument, and draws on both normative constitutional
theory and empirical political science research to support that argument, it would be an engaging text for graduate
and advanced undergraduate courses on the Supreme Court. Thus, it is particularly good news that the publisher
is due to release a paperback edition in December, 2001.
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Copyright 2001 by the author, Thomas M. Keck