Regimes matter. They matter in all sorts of ways, including in the making of constitutional law. In her powerful new book, Pamela Brandwein offers an example of this reality by exploring the importance of the Republican regime to the settlement of Reconstruction. In doing so, she sets her sights on well-received understandings of how the end of Reconstruction came to pass. By most accounts, Reconstruction ended because of “judicial abandonment.” In particular, a series of Supreme Court decisions eviscerating the civil rights laws of the post–Civil War era—mainly through the use of the “state action” doctrine—made it exceedingly difficult for the federal government to protect the federal rights of the recently freed slaves.

To Brandwein, however, the judicial abandonment thesis is filled with flaws. Taking advantage of recent historical studies that have brought forth a “new political history” of this time period, she offers an alternative reading of the Waite Court's most influential cases. To the author, the cases of this period, most importantly the Civil Rights Cases and United States v. Cruikshank, should not be read as a judicial evisceration of Reconstruction but as an intramural Republican debate over the proper meaning of civil rights (p. 61). So the Civil Rights Cases are “not the product of the Republican Party's jettisoning of its civil rights agenda” as much as a continuation of this debate. Cruikshank “did not handcuff the federal government” but allowed it to continue its enforcement efforts while limiting equal protection to race (p. 126). Thus, Brandwein argues that the abandonment of the civil rights of black Americans was more the result of the failure of the legislative and executive branches than of the judicial branch. Moreover, its end did not occur in the 1870s, as most assume, but with the failure of the Lodge-Hoar elections bill in 1891. As she writes, “the complete disenfranchisement of black voters that occurred in the wake of this failure was due to a confluence of factors that included southern intransigence, northern popular apathy, a deep economic depression, an inadequate administrative structure, and the changing character of the Republican Party. A ‘closed’ doctrine of state action … was not among them” (p. 183).

This is an important argument. Curious minds have long wondered how a Court filled with justices appointed by the great emancipator Abraham Lincoln could move so quickly to allow—if not constitutionally condone—the development of the white supremacy system of segregation that remained legal until the Brown v. Board of Education decision of 1954 and the Civil Rights acts of the mid-1960s. To Brandwein, the answer is clear. Put simply, it did not happen this way. Rather, the “story of definitive judicial abandonment” begins with the Fuller Court (1888–1910) and the Plessy decision of 1896, not its predecessor, the Waite Court (1874–88). As she writes, “the Waite Court, nearly all of whose members were appointed by Presidents Lincoln and Grant, acted at times to support the ruling Republican coalition (or at least the Grant-Garfield-Arthur wing of the party).” To be sure, at other times it did not act this way. Specifically, “it invalidated pieces of Reconstruction legislation that passed with the strong support of the ruling coalition, and it likewise threw out federal indictments brought by that regime” (p. 21). But nevertheless, as Brandwein makes clear, the Court did not close the door on Reconstruction. For example, “the question of legal segregation was one Justice Bradley left hazy in the Civil Rights Cases” (p. 18). Only in Plessy, a Fuller Court decision, was that ambiguity replaced by “a social Darwinist vision … and this was just the first step in shutting down options left open by the Waite Court” (p. 18).

Brandwein's work contributes to a growing “political regimes” literature in political science that understands Supreme Court decisions as products of political construction. But, as she points out, this does not mean that the justices are mere clones of the presidents and senates that put them in place. And this point is essential for understanding not only this period of constitutional history but also why conventional wisdom has long advanced the judicial abandonment thesis. Under attitudinal and strategic/rational choices models for understanding Supreme Court decisions, many cases during the 1870s and 1880s are easily mislabeled or understood as painting a picture of incoherence that Brandwein suggests is off target. In her reading, there is a “cohesive pattern in these decisions. All of the various ‘inconsistencies’ dissolve” (p. 21).

In making her strong case for a reconsideration of the Reconstruction cases, does Brandwein let the Waite Court off too easily? Some may think so. After all, her argument rests heavily on the fact that the Waite Court left options available to the legislative and executive branches to federally protect civil rights. As she writes, “The Court would not lead, but it would cue and it would reinforce” (p. 153). It chose not to lead in part out of a concern that it might look “ineffectual” if “the executive branch did not follow” and because “leading might well have been considered a violation of the judicial role” (p. 169).

This is certainly understandable, but it also seems fair to ask whether the Court could have done more. Consider, for example, the actions of the Warren Court, which finally constitutionally undercut the Jim Crow system of segregation in the South. With few exceptions, most notably Brown II, this Court rarely missed an opportunity to strike out against the separate-but-equal doctrine, despite widespread complaints that its “judicial activism” was democratically illegitimate. Its members did so in part because they understood the difficulty of congressional action and the protection that life tenure afforded them. In doing so, they did not simply follow through on the wishes and desires of the presidential wing of the New Deal Democratic coalition. And instead of restricting that coalition's options, the Court challenged its members to do more on the issue of race in the southern part of the United States. In the years after Brown, the Court no doubt looked ineffectual. Only after the other branches of government aligned with its vision on civil rights in the mid-1960s did real change occur. But nevertheless, most agree that the Court's leadership was essential to the equation. In other words, when it comes to confronting such a powerful issue as the subjugation of black Americans, history has shown that progress is most likely to occur when a regime unites to counteract—even if by fits and starts—the forces of the status quo.

So while the Waite Court did not close off all avenues of federal enforcement, as Brandwein adeptly shows, it may have nevertheless sent a powerful signal to the other branches that the “abandonment of blacks” was an acceptable path for the regime to take. But more than assessing the Court's leadership (or lack thereof) in civil rights enforcement, Brandwein is interested in carefully exploring the complexity of the Court's decisions and offering explanations for why they have been misunderstood in the past.

In doing so, Brandwein has written a provocative and important new work that forces all scholars interested in this period to reconsider what we thought we once knew about the end of Reconstruction and the nature of the Waite Court's judicial rulings. Political scientists seeking to understand constitutional history or judicial behavior in general will only have themselves to blame if they do not give this book the significant consideration it deserves.