Balkinization: Silverstein, LAW'S ALLURE

Silverstein, LAW'S ALLURE

Mark Graber

Law’s Allure: How Law Shapes, Contrains, Saves and Kills Politics provides an original and compelling analysis of the complex relationships between law and politics. Professor Silverstein’s insights that juridification in the United States is on the rise, that juridification is more than government by judiciary, and that this escape from politics has numerous hidden costs are interesting and important. The case studies are well written and informative, the research is solid, and the conclusions likely to provoke a good deal of conversation both within and without political science. Readers of such classics as Rosenberg, The Hollow Hope and McCann, Rights at Work, will want to add Law’s Allure to their bookshelves and syllabi. Lawyers in both government and public interest litigation should take the work’s proscriptions seriously.

Professor Silverstein provides a far more nuanced account of the relationship between law and politics than found in the existing political science literature. Most of the scholarship focuses on comparative institutional competence. Conventional legal wisdom proclaims law is a good tool for progressive policies. Gerry Rosenberg insists politics is the only fora for social change, while Michael McCann insists that legal solos have merits even when they do not directly produce desired reforms. There is also a long, relatively atheoretical, literature on constitutional dialogues, which simply highlights that both courts and elected officials participate in constitutional decision making. Law’s Allure makes important contributions to both literatures. One central theme of the manuscript is that courts never perform solos. Even when courts are silent, elected officials always act under what Mark Tushnet describes as a "judicial overhang." The crucial question is not which institution is more likely to produce desirable policy, but what sort of interactions between courts and elected officials are likely to produce desirable policy. One would think this an obvious insight, but one does not find this in the literature, and certainly not with the richness in this manuscript. Both justices and elected officials, Silverstein points out are always involved in a complicated iterated game with each other. Some games are more cooperative than others, but what needs analysis are the games, not what the impact of one institution isolated from the other. Professor Silverstein briefly observes that courts almost never produce social change on their own, but that courts matter when they interact with other governing officials. Courts made a major contribution to the environment, for example, not by performing a solo, but by building on a legislative framework. The problem with judicial rulings in campaign finance, was not that courts were making policy, but that the combination of legislation and judicial rulings was incoherent.

The manuscript does a nice job reminding political scientists that opinions structure the law/politics relationship as much as particular holdings. Most of the literature focuses on whether and how elected officials comply with court decisions. Professor Silverstein demonstrates that a good deal of the relationship between courts and elected officials occurs as each tries to work within the other’s precedents. For example, the Civil Rights Act of 1964 took a particular form because elected officials knew that the Supreme Court would sustain anything passed under the Commerce Clause, but might have doubts about the bill if passed under the Fourteenth Amendment. This precedential spiral had important consequences as judicial understandings of the commerce clause narrowed and the possible precedent paths based on Section 5 had never developed. The important point is that constitutional and legal dialogues are as much about legal frameworks as legal decisions. Judicial decisions often matter, not as requiring elected officials to do a specific thing, but as leading elected officials to discuss matters in a particular way. Witness how Buckley structured the debate over campaign finance law. I would add the way Bakke forces everyone to talk about diversity.

Law may matter, Law’ s Allure points out, even when courts are absent. Law’s Allure develops the original and important insight that the contemporary fascination with law extends beyond the lawsuit. Congress, when faced with problems as diverse as corruption in government, budgetary deficits, and presidential military adventures, has consistently attempted to resolve these problems by passing laws mandating automatic procedures rather than by resolving the particular policy. Rather than voting for specific budget cuts, Congress attempted to empower the Comptroller General to make the decision. The War Powers Act similarly relies on automatic procedures rather than a congressional vote on the particular military excursion.

The central lesson this all this analysis teaches is that law improves politics when law is not a substitute for politics. Litigation works fairly well, Professor Silverstein demonstrates, when politics has become stalemated or when justices are largely acting consistently with at least one branch of the national government. Brown helped break the logjam that prevented any policy from being made on racial segregation. The Supreme Court in the reapportionment cases broke the power of rural minorities who were preventing fair districting. Significantly, these opinions create powerful constituencies who were prepared to support the judicial decision. Litigation, in this sense, created a better politics and a politics that was likely to support the principles being articulated by courts. Judicial decisions also work well, the case study of the environment demonstrates, when courts and Congress are animated by similar principles. While Professor Silverstein does not quote Professor Scot Powe’s observation that there was a division of labor between courts and the executive branch during the 1960s, his analysis makes a similar point and does so more comprehensively. When courts are following legislative mandates, even vague legislative mandates, the resulting dialogues are likely to be more constructive than de-constructive. Courts do not perform the solos, but they matter a good deal when, for lots of reasons, elected officials cannot perform solos either.

Law, Law’s Allure also demonstrates in numerous ways, cannot substitute for a reasonably functioning politics. Political losers, while tempted to turn to law, are likely to be frustrated. First, they are not likely to win. When they do win victories in court, they may soon find themselves confronted by invigorated counter movements aimed at appointing more favorable justices, which requires them to go back and fight in the politics they thought they could avoid. When justices substitute their principles for those of Congress they may make a bigger mess. As the case study on campaign finance demonstrates, when courts declare parts of complex laws unconstitutional, the surviving mass may be worse from everyone’s perspective than the law or the world without the law. Finally, and most subtly, Professor Silverstein raises important questions about the turn to automatic law as a substitute for actually debating the specifics of budgets, corruption or war. The main virtue of automatic procedures, it seems, is that elected officials get to claim credit for doing things they are not actually doing. In practice, matters almost always get worse or, I think, not better. I am more fond of independent prosecutors than Professor Silverstein or Justice Scalia, but do not think the law actually did much of anything.

Posted 7:50 AM by Mark Graber [link]