Creating Constitutional Change: Clashes over Power and Liberty in the Supreme Court.

Vol. 15 No.3 (March 2005), pp.176-180

CREATING CONSTITUTIONAL CHANGE: CLASHES OVER POWER AND LIBERTY IN THE SUPREME COURT, by Gregg Ivers and Kevin T. McGuire (eds). Charlottesville, VA: University of Virginia Press, 2004. 328pp. Cloth $65.00. ISBN 0-8139-2302-6. Paper $24.50. ISBN 0-8139-2303-4.

Reviewed by Matthew J. Franck, Department of Political Science, Radford University. Email: mfranck@radford.edu .

Those of us who make it our business to study, teach, and write about the U.S. Supreme Court are apt to find nearly anything about the justices, their work, the parties before them, the interests involved in the cases, and the impact of the Court’s rulings just fascinating, no matter how trivial some of the information we consume. Give a public law scholar a fat new reference book on the Court, and come back several hours later: you are apt to find him or her still absorbed in browsing its pages.

All of this is by way of introducing the problem I have with the book at hand. In certain respects, I like it a lot, but I cannot figure out what it is for. Gregg Ivers and Kevin T. McGuire have assembled twenty-two short chapters by twenty-four contributors (including themselves), each chapter a treatment of the background, decision, and/or impact of a case (or in one instance, two companion cases) decided by the U.S. Supreme Court. Some of the cases are obvious choices for inclusion in any book whose editors wish to acquaint readers with “major” rulings of the Court: BUSH v. GORE (2000), YOUNGSTOWN SHEET & TUBE CO. v. SAWYER (1952), HAMMER v. DAGENHART (1918), and MIRANDA v. ARIZONA (1966), to name a few. Other cases are arguably important and intrinsically interesting, such as CLINTON v. JONES (1997), ATKINS v. VIRGINIA (2002), and CHURCH OF THE LUKUMI BABALU AYE v. CITY OF HIALEAH (1993). A few, however, are only tangentially related to the “constitutional change” in the book’s title, have more to do with statutory or regulatory issues, and seem to have been included because of the authors’ or editors’ personal interest in them; in this category are FLOOD v. KUHN (1972), PGA TOUR, INC. v. MARTIN (2001), and CIPOLLONE v. LIGGETT (1992). Almost without exception, the cases discussed are interesting in themselves, and the chapters are nearly all well-written. For anyone who teaches any of the cases dealt with herein, the book is a treasure trove of interesting facts upon which one can draw when students ask questions.

But I am sorry to have to report that “interesting” is the best thing I can say about this volume—and for reasons already noted, I am predisposed to be interested, so I cannot vouch for the sustained interest of any readers who would be new to the subject matter. Most of the chapters work chiefly as examples of what we might call the higher journalism, or, where the older cases are concerned (and none is older than the 1918 HAMMER ruling), as history-as-reportage. I am almost at a loss to say just what the book as a whole [*177] says about the state of political science scholarship in constitutional law—except perhaps to say that political science has lost its way.

Here is a short history of the matter, crude in detail, but accurate, I think, in its main themes. Political science as an organized, modern academic discipline has existed for a little over a century. For about the first half of its existence, public law was a vitally important interest of the discipline as a whole—one might even say that the modern study of political institutions grew out of the study of law as an organizing principle of political life. In the early twentieth century, pioneering political scientists like Edward Corwin examined the impact of constitutional jurisprudence on American civic life, and along the way proved themselves every bit the equal—often the superior—of constitutional law scholars in history departments and law faculties when it came to the analysis, critique, and uses of legal reasoning. What Corwin’s generation understood was that the most important question about every Supreme Court decision is also the most interesting question to the ordinary citizen, to the student, and hence to the scholar as well—i.e., was it rightly decided? But then, like every ordinary citizen, the scholars of Corwin’s generation believed or appeared to believe that the Constitution has a meaning of its own, independent of the passions of students, the interests of advocates, and the inclinations of judges. Legal reasoning, therefore, was actually possible. Political scientists’ work in public law was not confined altogether to questions of the use and abuse of legal principles, and even scholarship that centered upon such questions was not always polemical or even sharply judgmental in nature. But it was understood that the indispensable starting point for teaching new students of constitutional law was to equip them with the tools of reasoning that would allow them to draw thoughtful, defensible conclusions of their own about the meaning of the Constitution, in the belief that there were right answers in principle available to them.

The behavioral revolution of a half-century ago, which brought fully into daylight the implications of positivism in political science, gave birth to the first generation in public-law scholarship of what is now known (and still going strong) as the “attitudinal model.” More or less explicitly rejecting the possibility that legal reasoning and legal principles were themselves important independent variables in judicial decision-making, the judicial behavioralists undertook to demonstrate, through the application of quantitative empirical methods, that public law was not so much the shaper of political life as the plaything of ideological, partisan, and personal motivation on the part of judges. The complete neglect of legal reasoning, and the near-total exclusion of legal principle as a causal force in judicial decision-making, represented a classic instance of begging the question, as the late Wallace Mendelson cogently argued forty years ago in several articles critical of the judicial-behavioralist enterprise. And the effect of behavioralism on traditional constitutional-law teaching, with its casebook-based analysis of decisions, was to breed an unwarranted skepticism about the possibilities of judicial judgment. Students may have been taken through a traditional-seeming course full of cases to read, but they [*178] learned from their teachers to regard the Supreme Court as “just another” political institution, and were tacitly encouraged either to become disdainful cynics about the Court’s work or to adopt an ideological habit of praising or condemning the Court’s rulings, depending on whether the justices’ “commitments” matched their own.

Behavioralism’s Procrustean bed may have been bad for the study of constitutional law on the latter’s own terms. But one thing it had in common with the traditional study of constitutional jurisprudence was that both schools aspired to reach conclusions about judicial decision-making that had real explanatory power. The one through the close analysis of the reasons given by the justices, and the other through the deliberate neglect of the same and a diversion of attention to other variables, both sought to give an accounting of why the Supreme Court decided cases as it did. (I do not think that the attitudinal model has had much success in this regard, but its aspiration is plain.) Taking CREATING CONSTITUTIONAL CHANGE as a model of present-day, post-behavioral public law scholarship, where are we now?

Where we are now appears to be in a school of positivists without math skills. On the one hand, there is an almost complete neglect by nearly all the authors of the competing legal arguments presented by and in the cases they discuss. (Notable exceptions are Howard Gillman on BUSH v. GORE, and Maeva Marcus on YOUNGSTOWN.) In 350 pages, there cannot be more than about fifteen pages in toto devoted to analysis of legal arguments or of the reasoning in judicial opinions. Some of the chapters read like nothing more than extended headnotes, ably recounting the background of a case and identifying the basic legal dispute that required a decision, but stopping there and leaving the reader adrift when it comes to understanding the opinions that settled the dispute. Students who believe—as they are right to believe—that the most important thing they can come to understand about the Supreme Court is the adequacy of the justices’ legal reasoning will find no real help in this book.

In the absence of traditional jurisprudential analysis, on the other hand, what generally substitutes for it here has no real explanatory power, either. Some of the authors focus on the impact of their cases, and thus are more interested in their effects than their causes. But most of the chapters should be judged by whether they bear out the claim of the editors in their “Introduction,” where Ivers and McGuire profess their view that “the justices as individuals make decisions based on personal and political preferences, and that the Court, as an institution, reacts to external pressures” (p.2). But the methods of the attitudinalist make no appearance in this book, and many of the chapters, however interesting the stories they tell, do not even attempt to provide evidence for such claims, which are simply assumed to be true. In a few chapters, suggestions of causation are made that barely rise to the level of assertion, much less of argument. For instance, we might be told of some interesting political maneuvering to bring a winnable case to the Court (as by Julie Novkov, writing of the HAMMER case, [*179] or by Amy McKay and Michael Munger, writing of INS v. CHADHA, 1983); or we might be told of the strategic submission of amicus briefs by interest groups (as by Nancy Maveety, writing of PRINTZ v. U.S., 1997, or by editor McGuire, writing of ROSENBERGER v. UNIV. OF VIRGINIA, 1995, or by Karen O’Connor, writing of HILL v. COLORADO, 2000); or we might be told of the personal attributes or backgrounds of certain justices that intersect in interesting ways with the issues in a case (as by Barbara A. Perry, writing of the Michigan affirmative action cases of 2003, or by Jennifer Segal Diascro, writing of the Virginia Military Institute case of 1996). But there is no way of knowing, from the decisions that ensued or from the tales told herein, whether the political actors, or interest groups, or personal experiences of the justices, had any determinative or causal effect on the shape of the law, or even any influence that would make serious demands on the attention of those who wish to know how “constitutional change” occurs. This reduces the book to a collection of “Just So” stories, undergirded by unexamined assumptions.

Ivers and McGuire claim that the volume represents a “more interdisciplinary approach” to the study of the Court, that they wish to “focus on the more concrete aspects” of the subject, and to “humanize the study of constitutional politics” (pp.2, 3). By “interdisciplinary,” they appear to mean narrowing rather than broadening the horizons of students, since this book studies legal matters without studying law. By “concrete,” they appear to mean the construction of entertaining narratives worthy of popular history but really explaining nothing. By “humanize,” they appear to mean an approach that eschews all attention to what is most human in the law, the application of reason to stubborn problems of justice. In my experience, this is not the way to meet “the needs and interests of undergraduate students” (p.2), who above all need, and show an intense interest in, the exercise of their minds on the knotty problems presented by living under a principled Constitution.

CASE REFERENCES:

ATKINS v. VIRGINIA, 536 U.S. 304 (2002).

BUSH v. GORE, 531 U.S. 98 (2000).

CHURCH OF THE LUKUMI BABALU AYE v. CITY OF HIALEAH, 508 U.S. 520 (1993).

CIPOLLONE v. LIGGETT, 505 U.S. 504 (1992).

CLINTON v. JONES, 520 US. 681 (1997).

FLOOD v. KUHN, 407 U.S. 258 (1972).

GRATZ v. BOLLINGER, 539 U.S. 244 (2003).

GRUTTER v. BOLLINGER, 539 U.S. 306 (2003).

HAMMER v. DAGENHART, 247 U.S. 251 (1918).

HILL v. COLORADO, 530 U.S. 703 (2000). [*180]

IMMIGRATION AND NATURALIZATION SERVICE v. CHADHA, 462 U.S. 919 (1983).

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

PGA TOUR, INC. v. MARTIN, 532 U.S. 661 (2001).

ROSENBERGER v. UNIVERSITY OF VIRGINIA 515 U.S. 819 (1995).

UNITED STATES v. VIRGINIA, 518 U.S. 515 (1996).

YOUNGSTOWN SHEET & TUBE CO. v. SAWYER, 343 U.S. 579 (1952).

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