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Merely Judgment uses affirmative action in government contracting, legislative vetoes, flag burning, hate speech, and school prayer as windows for understanding how Supreme Court decisions send signals regarding the Court’s policy preferences to institutions and actors (such as lower courts, legislatures, executive branches, and interest groups), and then traces the responses of these same institutions and actors to Court decisions. The lower courts nearly always abide by Supreme Court precedent, but, to a surprising degree, elected branches and other institutions avoid complying with Supreme Court decisions. To explain the persistence of unconstitutional policies and legislation, Sweet isolates the ability of institutions to derail the litigation process. Merely Judgment explores the mechanisms by which litigants and their peers have escaped from the clutches of litigation and thus effectively ignored, evaded, and trumped the Supreme Court.
Reviews:
Merely Judgment provides an interesting examination of how ‘unconstitutional’ legislation survives as public policy even after adverse Supreme Court rulings that would seem to mark the end to such policies. It provides a set of richly detailed case studies of the adoption and implementation of affirmative action programs in government contracting that provide a valuable perspective on important issues in judicial compliance, judicial review, and constitutional law.
Martin J. Sweet is Assistant Professor of Political Science in the Honors College of Florida Atlantic University.
