As explained by Sanford Levinson in his Foreword, Justin Wert's volume represents the first entry in a new series, Constitutional Thinking, coedited by Jeffrey K. Tullis and Levinson for the University Press of Kansas. The series has begun auspiciously.

Levinson confesses to sharing with “many liberal law professors” (this reviewer included) a tendency to teach cases involving habeas corpus “as if they all exemplified a basically timeless set of values reaching back to Magna Carta” (p. vii). Wert characterizes this approach as the “Whiggishly developmental tradition,” a body of scholarship that emphasizes the role of courts at the expense of other political institutions in shaping habeas doctrine and misleadingly portrays the history of habeas as “a seamless, progressive whole” (p. 12), absent any attention to the more ignominious uses of the writ (e.g., by slaveholders in the nineteenth century to recover their fugitive slaves). Instead, Wert offers an account of habeas corpus in American political development resting on the assumption that while habeas is often considered a purely legal mechanism, there are as many, if not more, political determinants that have shaped “the Great Writ of Liberty” (p. 198).

Wert seeks to transcend legal and court-centered analyses of the history of the writ in order to detail habeas's “consistently and overwhelmingly political role” in American constitutional development, serving throughout as “a potent tool of political regime change, enforcement, and dissolution in American politics” (p. 2). He argues that the major developmental turning points in the history of habeas were produced by presidential, congressional, and judicial politics. At the same time, he cautions that these turning points did not simply involve courts translating political preferences into judicial outcome. Rather, he finds in the Court's habeas jurisprudence consistent efforts to preserve its ability to issue the writ independent of the current political regime.

The author identifies three classic eras of American constitutional development: the Founding to the eve of the Civil War (1789–1865), the Civil War and Reconstruction to Franklin Roosevelt's court-packing plan (1865–1937), and our current post-1937 constitutional order. He argues that the most important statutory and court-induced doctrinal changes to habeas closely tracked the emergence and dissolution of these three eras, each giving rise to political regimes that endeavored to change American governmental institutions in the service of larger ideas about constitutional meaning and governance.

At this point, perhaps inevitably, the “countermajoritarian difficulty” arises. Wert asserts that conventional accounts of habeas concentrate solely on courts because too many legal scholars are obsessed with the purported countermajoritarian function of the Supreme Court and its attendant assumption that courts act independently from other institutions. Indeed, he notes, it can be argued that habeas aggravates the difficulty because of the many ways it represents the very embodiment of countermajoritarianism.

Wert's alternative analysis is informed by the work of growing numbers of political scientists, legal historians, and legal academics who question both the utility and the historical accuracy of the purported countermajoritarian problem and who have begun to construct theories of judicial decision making that view the process from a larger political perspective. They posit that judicial review is best understood as nonmajoritarian rather than countermajoritarian and that the Court's powers are most often used in the service of larger majoritarian goals rather than in the service of the rights or interests of minorities. Their starting point is the seminal article by Robert A. Dahl (“Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 [1957]: 279–95).

Wert and other contemporary advocates of the political regimes approach, however, advance what the author considers a more developed and nuanced theory of the political dynamics of judicial decisions “that moves beyond the rather prosaic assumption that the Court follows the election returns” (p. 17). Instead, these scholars, while “deeply indebted to the work of Dahl, Shapiro, and McCloskey,” have brought the role of law back into the study of courts. They build on the “Dahlian insight” but, “contrary to judicial behavioralists of the attitudinal variety, they put forward a model of judicial decision making that attends to the legal factors involved in this process as much as the political ones” (p. 17).

Thus, Wert treats both the political and legal changes in habeas in relation to changes in regime building throughout American constitutional history to demonstrate that “Whiggish assertions of habeas as a bulwark of liberty, or as another Magna Carta” (p. 15) are belied by the real historical and political development of the writ. He concludes that the use of habeas by political regimes to enforce their preferred ideas of constitutional governance raises serious questions about the utility and accuracy of purely legal or doctrinal explanations of habeas corpus.

At the same time, Wert hopes to avoid jettisoning notions of judicial independence and legal conceptions in favor of theories of politics and political regimes. He agrees with Thomas M. Keck (“Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law Schools,” Law and Social Inquiry 32 [Spring 2007]: 511–41, an incisive summary of more recent developments among political scientists, legal historians, and academics pursuing the “Dahlian insight”) that to varying degrees and under varying conditions, judges do act independently of those who hold political power. Wert's evidence shows that the Court has regularly sought to enlarge and protect its ability as an institution to hear habeas cases even when it has decided to work with other political institutions to decide which substantive rights are protected by habeas.

The bulk of this book (Chapters 2 through 5) proceeds chronologically, offering a linear, historical account of the writ's development—an approach chosen to avoid the mistake most studies make of distinguishing “ordinary” and “extraordinary” (e.g., wartime) uses of the writ. Rather than treating wartime applications of habeas corpus development separately, the author considers them part of habeas's overall ordinary historical development.

Wert's analysis of the relevant habeas cases in each constitutional era is impressive, managing to distill the essential principle of each case, while also explaining arcane procedural aspects of the law with singular precision and clarity. The author also succeeds in relating the most salient habeas developments to the larger political, social, and legal developments in U.S. history, making a convincing case for the role of Congress, the president, political parties, state governments, legal academics and jurists, and interest groups in significant changes—both positive and negative—to habeas corpus.

The final chapter is an excellent summary of Wert's findings and a vindication of the sophistication of his approach. It contains a section on the habeas cases—Hamdi v. Rumsfeld [542 U.S. 507 (2004)], Rasul v. Bush [542 U.S. 466 (2004)], Hamdan v. Rumsfeld [548 U.S. 557 (2006)], and Boumediene v. U.S. [553 U.S. 723 (2008)]—arising from the “war on terror” that is one of the finest brief explications of these cases this reviewer has encountered (rivaled only by his masterful account in Chapter 5 of the ways in which the Burger and Rehnquist Courts narrowed the habeas jurisprudence of the Warren Court).

It is difficult to quarrel with Wert's conclusion that the writ, not Great, but not Not-So-Great, is “at least a good writ”—that is, as long as the institutional reality of the judiciary in American constitutionalism continues to include an enduring commitment to “at least some minimally acceptable procedures of fairness along with some inviolable rights of individuals that courts must always seek to protect” (p. 208).