<i>Allan C. Hutchinson</i> , Rethinking Legitimacy: Courts, Constitutions and Politics, Oxford, Hart Publishing, 2025, 192 pp, hb, £90.00

The Supreme Courts of the United States of America and the United Kingdom face increased scrutiny, albeit from opposing sides of the political spectrum. In 2021, speaking to the Public Law Project, the then Minister for Justice, Suella Braverman, claimed that recent decisions of the UK Supreme Court were risking the ‘legitimacy and reputation of our judiciary, which is inextricably linked to its political neutrality’. In 2024, the dissenting judgment of Justice Sonia Sotomayor in Donald Trump v United States (2024) 603 US 593 lamented that, because of the decision of the majority declaring the president immune from criminal prosecution for official actions, ‘[i]n every use of official power, the President is now a king above the law.’ While, in Britain, the Supreme Court is accused of being ‘political’ because it limits executive authority, in the United States, the Supreme Court is accused of being ‘political’ because it allows too much discretion to executive authority. Against this backdrop, the need for a re-examination of the constitutional foundations and aims of judicial review could hardly be more apparent. Allan C. Hutchinson's latest book, Rethinking Legitimacy, provides a welcome contribution that interrogates the contemporary positionings of law and (or law as) politics, proposing a recentring of the font of judicial legitimacy. The principal thrust of Hutchinson's argument is ‘critical’, that is, he believes that law is politics, ‘nothing more and nothing less’ (2). His ambition is to demonstrate that judicial decisions are intrinsically and inescapably political in style, substance and outcomes. His focus is primarily on the jurisprudence of the Supreme Court of the United States, but he indicates that his arguments apply to most common law systems, supplementing his analysis with jurisprudence of the Canadian Supreme Court. What distinguishes this work, according to him, is that it is his first attempt at providing a constructive answer to how judicial processes can operate if the ‘law-is-politics’ critique is taken seriously. Further, he distinguishes his work from other critical literature by recognising the professional constraints upon the judiciary. It is from this recognition that Hutchinson claims a solid foundation upon which he builds his constructive suggestions. Rather than being critical in a vacuum: ‘if the fact that the law is always and unavoidably political is truly grasped, it becomes possible to recommend ways in which that understanding can become incorporated into juristic practice … as well as live up to the demands of a robust spirit of democratic governance’ (8). The overarching aim is to demonstrate that the political nature of the judiciary need not pose a threat to democratic lawmaking. However, it is unclear from the outset that the primary theoretical perspective of the book, namely that law is politics, has a defined opponent. The sole example offered of the desire to keep law apolitical is from Justice Sotomayor during the oral arguments in Dobbs v Jackson Women's Health (2022) 597 US 215: ‘Will this institution survive the stench that this creates in the public perception that this Constitution and its reading are just political acts?’ (1). Yet even this is not quite contrary to Hutchinson's position, for Sotomayor does not state that the law is not political, simply that there is a danger in the court being perceived as such. Throughout the rest of the book, the adversarial interlocuter that Hutchinson is grappling with is vaguely referred to as ‘the traditional jurist’, ‘traditional jurisprudence’, or ‘traditional legal theory’. After one such reference, he cites a previous work of his own on the politics of legal theory (7). After a reference to ‘almost all other constitutional jurists and scholars,’ he cites a New York Times article rather than any academic source (8). In Chapter 3, Hutchinson discusses a number of jurists, apparently all within the category of ‘traditional’: Herbert Wechsler, Alexander Bickel, H. L. A. Hart, Ronald Dworkin etc. What ‘tradition’ these jurists fall into is not explicitly defined, but it is intimated that what unites them all is a quest for ‘neutral’ principles that exist beyond partisan politics. What is entirely lacking within the book, though, is the presentation by anyone of the argument that law is not politics. In fact, Hutchinson even provides a quote from Dworkin stating that law is ‘deeply and thoroughly political’ (40). Thus, it is unclear who precisely falls within this evasive ‘tradition’ that Hutchinson takes as his target, and what they have to say about the apolitical nature of law. Even implicitly, clarity cannot be found; there is nothing inherent in the concept of a neutral principle that requires it to be apolitical. This is something that Hutchinson himself recognises, asking ‘why is a neutral principle about politics not itself a political stance?’ (33). He does not give any evidence, however, of anyone who states that it isn't. Without clear evidence of his intellectual opposition, Hutchinson's arguments lose much of their persuasive force to the reader, both because the paucity of direct engagement with named scholarly opponents weakens the academic foundation of the critique and because Hutchinson is essentially presenting a rebuttal to an argument that has not been established. It is hard to find an argument against an invisible opponent convincing. Hutchinson's critique risks seeming to demolish a straw man. This is compounded by the delayed and unsystematic treatment of key concepts. It is only in Chapter 6 that an explanation of the term ‘politics’ is provided, despite it being central to the key thesis: it is ‘as much structural and systemic as it is personal and discrete – the nature of the individual, the organisation of society, the relationship between an individual and society, the role of government, institutional legitimacy (including the court's own), the distribution of power, democratic dynamics, and the like’ (84). In Chapter 7, Hutchinson expands this to include ‘legal theorising’ within the definition of politics. When the core argument of the book relates to the concept and definition of politics, it would have been beneficial to outline at the outset how this concept is to be used. Hutchinson is a self-proclaimed critical pragmatist, meaning that he is politically and epistemologically anti-authoritarian, denying ‘the possibility that there is some overriding method that can deliver and warrant a fixed notion of truth or correctness that is beyond dispute or revision’ (105). While conceding that, ‘[as] a pragmatist,’ Hutchinson is ‘less concerned with coherence and analysis’ than ‘the consequences of legal theory’ (107), it must also be conceded that inconsistency makes an argument less persuasive. For example, when proposing ‘constructive’ amendments to the processes of the courts, Hutchinson suggests that, broken free from traditional theory, curial argumentation ‘can be a suitable mix of the political and the legal’ (156). Given that the premise of the book is that the legal is political, it is unclear what this is intended to mean. On this view, surely argumentation in court should already – and must always – be entirely political? The strongest elements of this book are found when Hutchinson engages in discussions with an empirical bent. Chapter 2 contains a sociological discussion of curial legitimacy, divided into two elements: substantive and procedural. Substantive legitimacy is related to the outcomes of judicial decisions. If the outcomes conform to expectations, then legitimacy is maintained. Outcomes that diverge from expectations present a challenge to the legitimacy of the court. Procedural legitimacy speaks to the methods by which the court reaches its decision, primarily the reasoning provided. If judges do not act in a way that is perceived as appropriate or their reasoning is incoherent or overtly partisan, the legitimacy of the court is challenged. Hutchinson ultimately contends that substantive legitimacy should be afforded more weight than procedural legitimacy, the latter being overvalued because of the assumption that law and politics ought to be separate. In Chapters 4 and 5, he convincingly demonstrates that formal legal reasoning can conceal the true normative division within majority and dissenting judgments. The main examples he provides are the related cases of Roe v Wade (1973) 410 US 113 and Dobbs v Jackson Women's Health Organisation. The former established the constitutional right to abortion in the United States, whereas the latter abolished it. While the majority reasoning in Roe v Wade is ‘weak and unconvincing’ (67), both the majority and minority judgments in Dobbs v Jackson accuse the other of being an unprincipled misinterpretation of the US Constitution. Freed from the expectation to be consistent with precedent and other legally artificial standards, Hutchinson suggests that judges could more honestly articulate the normative justifications for their decision. The legitimacy of the court would then primarily be determined by the substance of its decision: ‘rather than being a bogus trade in so-called constitutional verities or neutral principles, the worth of constitutional law would be measured in terms of its capacity to protect and enhance the democratic society that it is supposed to serve’ (117). Another sociological insight offered by Hutchinson, that is particularly prescient given the aforementioned recent decision in Donald Trump v United States, is that the more a supreme court is understood to be the guardian (or embodiment) of the constitution, the less inclined other arms of the state will be to feel bound by the reasonable meanings of the constitution, and instead adopt a ‘see-what-we-can-get-away-with mentality’ (158). When constitutional interpretation is uniquely the province of the judiciary, intertwined with legal jargon and the pretence that the law is separate from ordinary politics, politicians become divorced from the laws intended to limit their powers. When the constitution is seen as a legal document rather than a political one, those in the political sphere are less inclined to pay attention to it. Hutchinson hopes that redefining the constitution as political will ‘re-animate citizens authority and primacy in democratic politics’ (159). Chapters 7 through 11 contain Hutchinson's attempt to recentre the font of legitimacy and examine the consequences that flow from this recentring. Jurisprudentially, legal reasoning must eschew formalism and explicitly embrace political and social complexities; judges must be understood as political agents; constitutional law should not be understood as self-contained but influenced by politics, economics and sociology; the court should be deprioritised as the oracle of constitutional law; and judicial review need not be ultimately squared with democracy. Judges ought to be more open and candid about their political views. Legal reasoning ought to expressly grapple with political disputes and values. Courts ought to be more accessible – financially, physically and intellectually – to members of the public. These proposals make one revisit the theoretical position that Hutchinson adopts: critical pragmatism, which eschews any desire for universal truths or principles. Yet all the proposals contained within these chapters appear to assume fidelity to progressive liberal democracy of the kind imagined by Dworkin or Hart. Indeed, Hutchinson many times expressly champions these values: ‘Chemerinsky is on the right track when he recommends that critics develop a reading of constitutional law that is more conducive to a progressive liberalism’ (110); ‘a pragmatic approach to constitutional law and decision-making is the most fitting complement to … any society that is committed to principled and democratic governance’ (131). Hutchinson's constructive project appears to rest on precisely the kind of foundational commitments his critical framework rejects, creating an unresolved theoretical tension. Ultimately, Rethinking Legitimacy must be commended for addressing the crisis in legitimacy faced by the courts and attempting to propose constructive alternatives to the current state of affairs, many of which are with value. The book integrates a range of considerations from legal reasoning, sociological legitimacy, judicial propriety, political philosophy and legal theory. As such, it may appeal to a broad range of specialists, or indeed people grappling with issues of judicial legitimacy for the first time, who will gain an introduction to a breadth of constitutional disputes and perspectives. However, the work would be stronger if it focussed uniquely upon the failures of courts to live up to their own standards, as a sociological and empirical examination of curial practices. It is, in my view, unfortunately, weakened by its attempt to attack what is essentially a conceptual problem, requiring rigorous analytical precision, with pragmatic means.

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