Saturday, August 14, 2021

A "Review" of Justice Breyer's "Manuscript"

Mark Graber


Dear Harvard University Press:

As a long-time reviewer for Harvard University Press, I am sure you are not interested in my evaluation that in present form The Authority of the Court and the Peril of Politics is not suited for publication in any university press.  To begin with the obvious, Justice Stephen Breyer’s essay is far too short and under footnoted.  Not only is the manuscript only 100 pages on a generous count, but the book is the size of my hand (and Graber men have small hands).  The word count on each page is, I suspect, between a quarter or a third, if that, of what one would expect in a Harvard University Press book.  The acknowledgements suggest the text was never sent out for review.  Budgets are tight, but given the size, I suspect the press could have found a reviewer willing to take on the task for a paperback or two, or even a Harvard University Press catalogue autographed by former Harvard Law Dean Elena Kagan.  Nor is the text burdened with many footnotes (about 25), even when footnotes are called for.  On a good day, I might have persuaded one of the secondary journals at Maryland Law to take on the manuscript of this size and scholarly weight, but certainly not a major university press.

Big things often come in small packages, but this is a case of what you see (if microscopically) is what you get.  Consider the author’s query on p. 16, “Where then lies the power of the Supreme Court.”  One would hardly know from what follows and certainly not from the lack of the footnotes that there is an extensive literature on this subject.  The general conclusion most scholars have reached is that courts have power because crucial governing elites want courts to have power.  Courts articulate the values of the governing regime, they bring those values into the hinterlands, and they resolve political hot potatoes when many governing officials would rather avoid responsibility for making controversial policies.  I might cite such scholars as Ran Hirschl, Howard Gillman, Leslie Goldstein, Terri Peretti, and Tom Ginsburg for that proposition, or important variations on that theme.  There is hardly a one to one correspondence between what justices do and what any other governing official does, just as there is hardly a one to one correspondence to what one government institution does and what another governing institution does.  Still, courts are political institutions subject to the perils of politics as much as other political institutions, even as courts have distinctly legal means for dealing with the perils of politics.  The rule of law matters, but just as science alone does not explain the output of the Environmental Protection Agency, so law alone hardly explains the output of the federal judiciary.  A generation of scholars has demonstrated the political foundations of judicial review, that members of the executive and legislative branches play crucial roles in establishing judicial power because they believe a strong judiciary will promote regime goals far more partisan than the neutral rule of law.  Justice Breyer neither explains why this literature is wrong nor bothers to inform the reader that this literature exists.

Justice Breyer shortly thereafter seemingly begins to explore whether “the Court had actually played a major role in ending segregation” (25).  This, as political scientists and historians are taught in graduate school, is a major controversy with Gerald Rosenberg’s The Hollow Hope laying down a challenge that has never been fully answered to demonstrate powerful political effects from the judicial decision in Brown v. Board of Education (1954).  Breyer as is his wont, engages with none of this literature.  Instead, without citing any evidence he states, the court “played an essential role in ending legal segregation,” that the Court [with other political actors] . . . won a majority victory for constitutional law, for equality, and above all for justice itself,” and that the decision “helped to promote respect for the Court and increased its authority.” (26)   Breyer concludes “I cannot prove this assertion.  But I fervently believe it.” (26) "Credo absurdum," Latin scholars might observe.  If this is the standard of publication for Harvard University Press, please expect a manuscript from me demonstrating that the New York Giants will win the Super Bowl (needs a fast turnaround), that the Sicilian Dragon is playable in top chess tournaments, and that Mahler 2 is the most sublime symphony ever written, none of which I can prove, but all of which I fervently believe.

The broader point is that Justice Breyer in a book entitled The Authority of the Court and the Peril of Politics performs the remarkable feat of never citing a member of the Law and Courts Section of the American Political Science Association, many of whom have devoted their lives to researching the authority of the federal judiciary and the role of the Supreme Court in American Politics.  No doubt actually sitting on the Supreme Court gives a person a vantage point those of us who actually have to perform research to get published lack.  Still, given that almost every sentence of the text has been subject to scholarly investigation, it would be nice if Harvard University Press as opposed to, say Regent, actually demanded some evidence of engagement with the literature.  Political scientists appreciate citations.

In fairness to Justice Breyer, I note that he has a day job that may take up a good deal of his time, even though that day job comes with more research assistance than any academic could ever dream of.  The main lesson to take from the problems with The Authority of the Court is that one cannot successfully perform the function of Supreme Court Justice and publish a major university press book that scholars ought to take seriously.  Still, the book does demonstrate a good deal of native talent.  If submitted as part of an application, I believe any major graduate program in political science would be happy to take Justice Breyer on as a student.  The University of Texas comes to mind, as does Princeton.  Julie Novkov runs an underappreciated program in SUNY, Albany.  Justice Amy Coney Barrett, who I fear has a book of similar quality forthcoming, might consider joining Justice Breyer.  Still, The Authority of the Court is likely to be converted into a successful dissertation and major university press book only if Breyer is willing to put in the time necessary to do the research.  The solution is simple.  Harvard should withdraw the book from publication, insist that Justice Breyer if he wishes to continue publishing university press books, as I believe a person of his intelligence and talent should, enter a leading graduate program, study with a distinguished political scientist and forego all other employment that distracts from this worthy endeavor.

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