Amid the current political impasse in Washington, DC, it is helpful to remember that political gridlock does at times give way to bursts of dramatic policymaking. These moments, while far and few between, are at the center of legal scholar Bruce Ackerman’s notion that politics as usual may give way to a “higher lawmaking” modality with the capacity to augur in constitutional transformation (We the People, vol. 1, 1991).

In Recalibrating Reform, Stuart Chinn gives an inventive new twist to Ackerman’s concern with transformative reform by making the provocative argument that these “transformations” are much more contained than Ackerman’s story of political-change-as-higher-lawmaking would suggest. Focusing on notable lawmaking initiatives that emerged during Reconstruction, the New Deal, and the Civil Rights era, Chinn, proposes that we conceptualize even the most radical legal reform initiatives as a form of “contained destruction” (p. 37). New legal considerations embedded in reform laws demolish existing legal structures, but only within a certain domain. Moreover, they must be reconciled with other, potentially conflicting, elements of the prereform politico-legal order that impinge on this domain of transformation. His analysis thus operates not at the level of policy visions or constitutional gestalt but, rather, at the level of what he terms “structures of governance” (p. 29). Inspired by the literature on American political development, he examines both jurisprudential frameworks and institutional arrangements and sees the two as largely interchangeable for purposes of charting the conceptual contours of a given political order.

Chinn’s lucidly written intervention is a welcome one. Liberal legal scholars have all too often alternated between the extremes of celebrating transformative reform and bemoaning the “failure” of cherished reform initiatives. By examining the gritty and unglamorous work of governance reconstruction in the aftermath of reform, Chinn moves the discussion of politico-legal transformation onto a more nuanced analytical plane. Moreover, he convincingly demonstrates that the U.S. Supreme Court has played a prominent role throughout American history in setting in motion and supervising the reconstruction of stable conceptual boundaries calibrated to the context of postreform politics.

Beyond urging a move away from sweeping generalization, Recalibrating Reform has the ambitious goal of formulating a general theory of political development. With this aim in mind, Chinn draws on case studies of postreform recalibration to develop a series of claims about what he identifies to be the recurring dynamics of this process. Most provocatively, he makes the claim that the judiciary’s contribution to reconstructing governance in the wake of transformative reform will predictably tend towards retrenchment or delimitation. He explains this strong propensity toward delimitation in terms of the unique institutional prerogatives of the judiciary. When faced with the task of integrating “system-threatening reforms” within a preexisting institutional and legal context, the judiciary has an institutional predisposition to promote stability. According to the author, this institutional predisposition for stabilizing boundaries between competing sets of governing authorities and competing sets of rights is a by-product of the judiciary’s “peculiar commitment to basic legality values of notice, settlement, and predictability in the law” (p. 41). In his assessment, judicial rulings “codify and crystallize emergent political developments” (p. 54).

As Chinn notes, this vision of the judiciary, and in particular of the U.S. Supreme Court, as institutionally predisposed toward retrenchment has echoes of Tocqueville, but it differs in an important respect. Whereas Tocqueville had viewed law and lawyers as having an inherently conservative nature, Chinn associates the Supreme Court’s propensity for delimiting open-ended reform programs with the unique political environment accompanying transformative recalibration. As he points out, the justices do indeed at times go out of their way to assist, or even lead, in dismantling portions of the governance grid of authorities and rights. The Court’s decision in Brown v. Board of Education (1954) is the prime case in point. Therefore, the impulse to stabilization, he argues, is not a general feature of the American judiciary but, rather, a distinct institutional response to the crises of governance that, throughout American history, have tended to follow the enactment of dramatic law reform.

Chinn sees the Court’s assumption of a delimiting role as tied not only to its institutional predisposition for stability but also to intrainstitutional strategic calculations operating at a particular stage of political development. He writes: “In the immediate post-reform context, the weakness of external constraints on the Court may allow for greater judicial independence and, correspondingly, may also allow for the judicial interest in stability to be more efficacious in shaping legal development” (p. 47). In other words, judicial delimitation, in Chinn’s view, takes place in the particular stage of political development that immediately follows the enactment of disruptive law reform initiatives. Once the judiciary has marked the boundaries of legal disruption through a cluster of high-profile decisions, political development then enters a new stage. Recalibration is completed as a range of political actors, working within the now-delimited domain of reform, contribute to the construction of a new grid of legal rights and authority relationships. At this stage, the role of the Court is primarily one of affirming these incremental acts of construction, thereby entrenching the new order.

Chinn presents three case studies of transformative reform and its aftermath to illustrate his claim that postreform political development proceeds through discernible stages of recalibration, each with a distinct set of institutional dynamics. These historical narratives about the legal trajectories of the Reconstruction Amendments, the Wagner Act, and the Brown decision rely on readings of judicial opinions and litigants’ briefs and utilize secondary historical sources to set the judicial decisions in context. What one learns from these narratives is that in all three periods, law reform was situated amid heightened social instability. Whether legislative initiatives went too far too fast or whether insufficient resources were devoted to affecting structural social change have been matters of historical debate, and Chinn does not address either of these questions directly. Rather, he emphasizes the success of opponents of reform programs in convincing sizable subsets of the public that the new legal direction was creating social disorder. In each instance, legislative efforts to make rights a reality ground to a halt, but opponents were not strong enough to repeal signature legislative enactments so as to return to the prereform governance order. With the legislative and executive branches unable to craft a policy framework calibrated to the new political reality, it fell to the Supreme Court to “clarify and demarcate which aspects of the reform would remain standing in the face of resilient authorities and rights” (p. 164).

For this reader, the narrative of “governance crisis” inevitably emerging from ambitious law reform projects at times seemed a bit too close to a deus ex machina explanation for recalibration. It is not clear from Chinn’s account whether he sees each instance of “crisis” as something that is real or as something that is constructed by political actors. Yet surely this would matter for purposes of the Court’s assessment that reforms qualify as “system-threatening” and thereby necessitating delimitation.

Moreover, the author’s analysis is premised on a particular understanding of governance, one that mirrors the jurist’s affinity for creating order. In this conceptual world, political regimes take the form of a grid of coherent conceptual boundaries. The affective dimension of governance is absent from this model, as is any notion of law’s own internal contradictions. Admittedly, these considerations are largely outside the parameters of Chinn’s focus on transformative reform and its aftermath, but one wonders whether “normal politics” might not be a good deal more unstable than the model of recalibrating reform suggests.

Closer to the concerns of the book, one wonders whether the delimiting actions of the Court might not be driven by other factors besides an institutional predisposition towards stability. In Chapter 6, Chinn marshals evidence to substantiate his institutionally based explanation of the U.S. judiciary’s pattern of delimiting reform against approaches that explain judicial behavior in terms of the politics of the appointing president or in terms of public opinion at the moment a case is decided. Yet even if the justices are institutionally predisposed to delimit the open-ended rights extended to subordinated groups, it is not clear why their institutional preference for stability should lead them to draw the line in such a conservative manner. A purely institutional story appears particularly unsatisfying in the area of labor rights. The United States was not the only industrialized democracy to enunciate a right to freedom of association during the twentieth century, and in comparative perspective, the Wagner Act does not look particularly radical. And yet in no other developed democracy has judicial curtailment of this right to freedom of association been so pronounced. Other countries drew a different line between conflicting legal considerations, even as their jurists faced the same challenge of reconstructing political order in the aftermath of transformative legal reform.

The comparative dimension suggests that any claim to developing a general theory of political development might need to be qualified by national context. Nevertheless, for scholars focused specifically on American political development, Recalibrating Reform is uniquely helpful in opening new frontiers for thinking about how sweeping statements of rights are incorporated into the existing political terrain.