Book Review: Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court by Martin J. Sweet

Martin J. Sweet. Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court. Charlottesville, Virginia, University of  Virginia Press, 2010 (224 pages); $35.00 hardcover.

Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court by Martin J. Sweet is recommended for anyone interested in the United States Supreme Court and the influence of legal, social, and political factors on compliance with Supreme Court rulings.  Sweet guides the reader through several examples to support his theory that legislation involving constitutional rights tends to be written to avoid litigation rather than comply with Supreme Court decisions.  Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court raises questions and sheds light on Supreme Court decisions and their impact on law and society.

Sweet begins with an introduction to City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), which, he explains, generated affirmative action program growth throughout the 1990s.  In Croson, the Supreme Court set forth how legislation can survive the strict scrutiny standard.  According to Sweet, the effects, however, continued to demonstrate an inability of challenged affirmative action programs to survive.  He explains that lower courts strike them down when challenged.  But most suspect programs are never challenged, and new legislation is written to avoid litigation.

In Chapter two, Sweet describes how social barriers to litigation such as lack of knowledge of legal rights can keep unconstitutional legislation from being challenged.  He explains that the legal saga of Philadelphia’s minority business enterprise program provides an example of the judiciary appropriately having the final say regarding constitutional issues between the courts and the legislature.

Chapters three and four provide examples of political and legal barriers to challenges of suspect legislation.  Sweet asserts in Chapter three that the city of Portland, Oregon maintains an unconstitutional minority business enterprise program by blocking litigation.  He explains that Portland officials believed their program could not withstand the strict scrutiny required by Croson.  Therefore, he states, the city created political barriers to challenge by providing assistance to the interest group most likely to challenge the program.  Sweet contends this conduct threatens the judicial role in constitutional interpretation.  In Miami, however, Sweet explains that little to no implementation of the minority business enterprise program means no one has standing to challenge the program, which allows an unconstitutional program to remain in place, slyly undermining the authority of the Supreme Court.  Sweet explains this legal barrier to litigation has allowed Miami’s minority business enterprise program to remain largely unchanged since before Croson.

In Chapter five, Sweet explores barriers to litigation challenging constitutionally suspect legislation beyond affirmative action.  He explains that hate speech laws are not challenged due to social, legal, and political barriers.  Further, he explores social costs inhibiting school prayer challenges, legal barriers to flag burning law challenges, and political barriers to legislative veto challenges.  Though his assertions are somewhat inflammatory and potentially offensive to legislators, he provides well-researched arguments, utilizing empirical evidence to support his claims.

Sweet concludes with an explanation of how even when a potential challenge of suspect legislation overcomes social barriers, legal and political barriers still may assist unconstitutional laws to remain in place.  Sweet asserts that the political barriers are most troubling because they represent calculated conduct by elected officials to undermine authority of the Supreme Court.  He calls for judicial primacy yet sets forth few practical approaches for implementation.

Reviewed by Michele Thomas, Catalog & Reference Librarian at the University of Arkansas at Little Rock William H. Bowen School of Law Library.

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February 2011

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