A Storm Over This Court: Law, Politics, and Supreme Court Decision Making in Brown v. Board of Education by Jeffrey D. Hockett (review)

On May 17, 2014, the United States celebrated the sixtieth anniversary of one of the Supreme Court’s most significant decisions, Brown v. Board of Education. Not surprisingly, the Brown decision is also one of the most studied of the court’s rulings. Indeed, many scholars have sought to understand both the court’s path to Brown and its far-reaching implications. In his book, A Storm Over This Court, Jeffrey Hockett assesses political science (and some legal) scholarship on Supreme Court decision-making through the lens of Brown. In doing so, he sheds a great deal of light on both this scholarship and the decision-making process of the justices who reached the unanimous ruling.

Because much of the book takes the reader through a significant amount of scholarship on Supreme Court decision-making, the uninitiated will find reading much of the book tough sledding. It may work well in a graduate or advanced undergraduate course on judicial decision-making, but even the best undergraduate students may struggle with some of the writing, which contains far too many sentences that are overly long and/or unnecessarily dense.

Leaving the writing aside, Hockett should be commended for attempting to apply the various approaches of Supreme Court decision-making to this case, in fact to the votes of the individual justices in this one case. Even readers very familiar with these works and with the Brown decision itself will gain insight in the pages of this book.

Hockett begins his analysis with the attitudinal model, concluding after a thorough examination of the “justices’ notes and memoranda regarding the conference deliberations” that the justices’ attitudes on segregation do not necessarily explain their votes in Brown (p. 58). Next, Hockett considers the “strategic alternative.” While helping to clarify some aspects of the ruling, particularly Chief Justice Earl Warren’s significant role in leading the court to unanimity, this approach ultimately fails to explain the decision entirely as well. Hockett is more convinced by a constitutive understanding of Brown, particularly with regard to three justices who had demonstrated pro-segregation thinking before ascending to the high bench. Hockett next examines arguments—made most prominently by Mary Dudziak—advancing a Cold War thesis as a motivating factor in the justices’ ruling. He, however, is not completely convinced. To him, the centrality of the international tensions at the time only helps to explain a few of the justices’ votes. Finally, Hockett assesses the work of scholars—typically identified as regime politics or political-regime scholars—who emphasize domestic reasons for the court’s march toward its historic 1954 desegregation decision. Again, while he believes they help explain some factors about Brown, they do not explain the ruling entirely.

As those familiar with these models know, they were mainly devised to explain scores of Supreme Court decisions, not just the votes of each individual justice in each individual case. And for this reason, Hockett’s application of them exclusively to the Brown decision does not always work for some models as it does for others. For example, in evaluating the regime-politics model, he seems to miss its real point, namely the political construction of law. In other words, regime-politics scholars—and I certainly include myself here—are less concerned about explaining why each individual justice decided a case the way he or she did, and more interested in explaining the political dynamics that constructed an institutional mission on the court that produced a certain judicial result. In the end, the justices may reach a particular decision for a range of reasons. Understanding this likelihood, regime-politics scholars stress that such decisions—especially politically salient ones—will be consistent with the essence of the court’s mission as constructed by a governing regime of a particular...