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We often hear—with particular frequency during recent Supreme Court nomination hearings—that justices should not create constitutional rights, but should instead enforce the rights that the Constitution enshrines. In Regulatory Rights, Larry Yackle sets out to convince readers that such arguments fundamentally misconceive both the work that justices do and the character of the American Constitution in whose name they do it.  It matters who sits on the Supreme Court, he argues, precisely because justices do create individual constitutional rights.

Traversing a wide range of Supreme Court decisions that established crucial precedents about racial discrimination, the death penalty, and sexual freedom, Yackle contends that the rights we enjoy are neither more nor less than what the justices choose to make of them. Regulatory Rights is a bracing read that will be heatedly debated by all those interested in constitutional law and the judiciary.

In Representation Rights and the Burger Years, political scientist Nancy Maveety tackles the constitutional meaning of "fair and effective" representation rights and evaluates the specific contributions that the Supreme Court made to this definition during the Burger era.

 

The Court of Chief Justice Warren Burger has been described as one that made no distinctive jurisprudential contributions.  It has been dismissed as a court overshadowed by both its predecessor and its successor.  By contrast, Maveety argues that the Burger Court in fact revolutionized constitutional understandings of political representation, expanding, in particular, the judicial scrutiny of political institutions.  Moving beyond the "one person, one vote" reapportionment initiated by the Warren Court, it opened the way for the articulation of group-based constitutional representation rights.

 

This group-based approach to representation questions broadened groups' constitutional claims to equal political influence.  Yet, as Maveety perceptively shows, this broader interpretation of "representable interests" was grounded in mainstream American conceptions of political representation.  The great value of Maveety's study is the presentation of a "typology of group representation," which explains and validates the Burger Court's work on representation rights.  This typology, drawn from American history, political theory, and political practice, offers a new approach for evaluating the precedental record of the Burger years and a sophisticated framework for understanding the interaction between constitutional law and politics.