The unit of analysis for law professors is nearly always the court decision. This holds true for legal pedagogy and scholarship in general, but it is particularly true in the area of constitutional rights. On the basis of the assumption that courts are independent of the political process and can exercise judicial review to protect “discrete and insular” minorities from the tyranny of the majority, it is assumed by many—especially those in the legal academy—that the judiciary is the best-situated governmental institution to protect individual rights under the U.S. Constitution. In Enforcing Equality, Rebecca Zeitlow joins a growing legion of law professors and political scientists interested in the “Constitution outside the Court,” and who are dubious of the so-called countermajoritarian problem, and the Court's unabated role in protecting constitutional rights.

Zeitlow's project is to demonstrate that historically, the United States Congress has been more effective at protecting individual rights than the Supreme Court. In particular, she is interested in “rights of belonging,” a set of equality-oriented rights including “those rights that promote an inclusive vision of who belongs to the national community of the United States and that facilitate equal membership in that community” (p. 6). To demonstrate how Congress engages in serious debates about rights, the author analyzes three cases studies rooted in three distinct historical periods: Reconstruction, the New Deal, and the Civil Rights era of the 1950s and 1960s. More specifically, she provides rich descriptions of congressional debates over equality and civil rights in the wake of the Civil War, the Wagner Act in the 1930s, and the Civil Rights Act of 1964. Juxtaposing these debates and the resulting legislation against the Supreme Court's record on civil rights and labor law, Zeitlow exuberantly declares that “when Congress does act to protect rights of belonging, it enjoys significant institutional strengths that make it more effective than courts” (p. 145).

In the seventh of the eight chapters, the author discusses the institutional designs of Congress and the judiciary. This chapter seems somewhat misplaced, and most political scientists will recognize it as a theory chapter that might be better situated before the case studies. Here, Zeitlow claims that her case studies debunk the “conventional wisdom” that courts are better situated institutionally to protect rights, and she explains from a more theoretical perspective that “there are strong institutional reasons that Congress should have the autonomy to define the meaning of rights of belonging” (p. 146). She provides a laundry list of compelling reasons why Congress should be tasked with this responsibility, such as its lack of insularity and thus its connection to the values of ordinary citizens when making value judgments about the rights of belonging (pp. 152–54); “fact-finding capabilities and … flexibility in creating policy” (p. 155); the transparency of congressional decision making compared to judicial decision making (p. 156); and the superior “enforceability of congressional measures” (p. 157).

I doubt that most political scientists would take issue with the general argument that in the past, scholars—and especially legal scholars—have tended to overstate the importance of courts, and the Supreme Court in particular, for protecting individual rights and promoting equality. As a result, the role of Congress or other political institutions has been understated, and in fact, Congress has in many instances protected civil rights and other individual rights when courts have failed or refused to do so. Political scientists may not be surprised by her findings, but Zeitlow does an admirable job of confirming these principles with great historical detail.

So who still holds this “conventional wisdom” that courts are the ordained protectors of rights in the U.S. system of government? It may be time to redefine conventional wisdom in this context. At the same time, it must be acknowledged that Congress can also be given too much credit. The problem arises most acutely when we consider the decisions of one institution more or less in isolation from the others. Zeitlow notes: “Ideally, both courts and legislatures will act to protect rights of belonging and judicial review will serve simply as a backstop when legislatures fail to carry out this task” (p. 145). While she suggests a role for both, the book essentially analyzes the role of each institution separately from the other. The trend in political science, on the other hand, has been to recognize the interdependency of governmental and political institutions, and much attention has been focused on the relationship between the Supreme Court and Congress and the effects of that relationship.

And so while Zeitlow credits Congress for protecting labor rights with the debate over, and passage of, the Wagner Act during a time when courts were hostile to labor interests, George Lovell in his book Legislative Deferrals (2003) chronicles how Congress had for decades drafted legislation in a manner that virtually invited courts to limit labor rights; thus, a majority of members of Congress could appear to be championing labor interests by voting for legislation that was auspiciously pro-labor, but the actual commitment to labor was questionable at best during much of the period Zeitlow examines. And courts appeared to be acting in a manner that subverted popular will, but they were interpreting legislation that actually invited and deferred to judicial policymaking.

In addition, the accounts of congressional debates, while detailed and interesting, present a picture of members of Congress engaging in serious constitutional debates on their own volition. This may be the case some of the time, but we know that often, members of Congress are motivated to consider the constitutional dimension of an issue or a bill because of the threat of judicial review by the courts. They may use that threat sincerely or strategically, but constitutional debates in Congress often center around judicial doctrine. Such was the case with the Civil Rights Act of 1964, analyzed in Chapter 5. While one could be cynical about this reality, the threat of judicial review in some instances may force deliberation that would not have otherwise occurred, especially for debates over less salient issues than the extraordinary cases examined in this book. In short, any consideration of the strengths and weaknesses of each institution for protecting constitutional rights must also account for how the institutions routinely and continuously interact.

In the final analysis, political scientists interested in the protection of rights in Congress will find this book a valuable resource for the rich historical descriptions contained in the case studies. However, the theoretical foundations of the book would be strengthened if the institutions of the judiciary and Congress were considered as being less isolated from one another than is characterized here. And lastly, there may be an issue of how well we can generalize from the book's findings given the high salience of the issues involved and the extraordinary political circumstances surrounding each of the case studies. Still, Enforcing Equality makes a significant contribution to legal scholarship, if for no other reason than its insistence that court decisions are not the only unit of analysis for legal academics.