The three types of issues discussed in Chapter 5 involve a combination of interesting and routine issues. Probably the most interesting are those related to eligibility that dealt with formal qualifications: legal training, law license, practice time, residence, age, and gender. Several challenges to licensing requirements arose because the requirement was stated as “learned in the law,” which in turn raised questions as to whether that meant holding a law degree. The more interesting issues concerned age, particularly after the passage of the federal Age Discrimination in Employment Act (ADEA); importantly, the ADEA cases arose in states that appointed rather than elected judges, and the issue was whether judicial positions fell under the “policy position” exclusion. Age-related cases were brought on other grounds (e.g., equal protection) as well, but those cases failed. Term length cases generally concerned how long a judge appointed to fill a vacancy was to serve. Vacancy cases concerned the existence of a vacancy and how vacancies were to be filled.

The primary focus in Chapter 7 is election administration, which includes ballot contents (e.g., what name a candidate could use on the ballot and additional information that should or could appear on the ballot such as incumbency status of a candidate), ballot form or format (retention or contested), scheduling issues, validity of the election, and a range of other issues. The chapter concludes with a relatively brief discussion of election contests, including type of election being contested (partisan or nonpartisan, primary or general), and the issue raised in the contest; two of the cases involved name issues raised after the election, one a name change and the other the use of the candidate’s birth name rather than her married name.

Chapter 8 covered cases specific to nonelective systems, including the Missouri Plan, other appointment (mostly gubernatorial) systems, and legislative elections. The Missouri Plan cases mostly concerned the membership and processes of nominating commissions. Appointment cases concern issues such as requirements for legislative (usually state senate) confirmation and recess appointments. The legislative election cases generally dealt with technical issues (e.g., whether the vote in the legislature could be a voice vote or required ballots).

The concluding chapter starts by very briefly summarizing key patterns in the litigation over judicial selection and then returns to the de Tocqueville quote and the issue of American exceptionalism. To assess the exceptionalism question, the chapter includes a discussion of litigation over judicial selection outside the United States, finding that it occurs in very few countries and where it does occur, is generally very limited. One exception is the recent burst of litigation in international courts over judicial selection in Poland. Another possible exception is Israel where there has been litigation concerning several judicial selection issues. Overall, the chapter concludes that American exceptionalism in litigation over judicial selection does not lie in the existence of such litigation but in the frequency of that litigation.

The book opens with a discussion of a case from Delaware challenging a long-standing requirement for partisan balance on state courts in the Delaware state constitution. The chapter goes on to note that substantively Marbury v. Madison (1803) was a case about the judicial appointment process. After a brief discussion of recent litigation over the appointment of federal administrative law judges, the chapter notes that litigation over judicial selection is consistent with Alexis de Tocqueville’s observation that “scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question.” The chapter identifies several expectations, describes the data collection process, and briefly outlines the chapters that follow.

The first part of Chapter 6 focuses on cases about the nomination process. A large percentage of these cases come from New York where party conventions are the primary method for nominating candidates. The chapter divides nomination cases into those concerning the initiation of candidacy (e.g., nominating petitions) and those concerning choosing nominees. Of more consequence are the cases concerning candidate speech and campaign finance, both of which led to major SCOTUS decisions. The speech cases focused heavily on codes placing limits on what candidates in judicial elections could say. In addition to speech code limitations, there were speech-related cases concerning defamation, misrepresentation, false statements or claims, impugning opponents, and improper promises or statements. In addition to speech issues, the chapter discussed other forms of improper candidate behavior (e.g., improper use of work resources by incumbents running for reelection). Campaign finance issues included those related to fundraising (e.g., solicitation by candidates, reporting requirements, requests for recusal due to parties or lawyers being involved in fundraising for the judge/s campaign), loans, expenditures, and public funding.

Chapter 4 discusses the types of cases that are the most consequential: those challenging the existing system of judicial selection and those concerning proposed or enacted changes to the system. The majority of challenges to systems were brought under the Voting Rights Act, which the US Supreme Court found to cover judicial elections, at least in certain ways. Efforts to challenge judicial elections under the one person, one vote doctrine were not successful because that doctrine applied only to “representatives,” a category not including judges. There were unsuccessful challenges brought on other grounds as well. The cases involving proposed and enacted changes covered a wide range of such changes.

The most glaring disparity in America’s search for equality has been and continues to be slavery and its legacy. In this chapter, we discuss the history of slavery, its purported elimination at the time of the Civil War and through the Reconstruction Amendments to the Constitution, then its reemergence through Jim Crow laws. The unfortunate reality is that the fight for equality is ever present. John Lewis, the long-serving member of the House of Representatives from Georgia, is emblematic of the importance and continuing nature of that fight. As a young man, he was nearly killed on the Edmund Pettus Bridge during the March on Selma. He continued to fight for racial equality throughout his life to the point of penning an op-ed published posthumously in the New York Times just days after his death. The federal government played an essential role in trying to advance the fight for racial equality, primarily through cases such as Brown v. Board of Education and legislation such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Markets did not eliminate racial discrimination; they perpetuated and profited from it.

Donald Trump was not the first president to favor smaller government, but they understood and respected the need for government even as they favored an adjustment in the mix. Instead of a conversation about the mix, Trump made politics about the distrust and animosity of Americans toward other Americans. His efforts to retain the presidency even though he lost the election based on the “big lie” poisoned trust in elections that continues, and his plan to stop the election of Joe Biden discarded democracy altogether. These tactics made it more difficult to have a national conversation about a change in the mix of government and markets that could renew economic opportunity for those left behind by economic developments and previous decisions of government by both political parties. The government helped to unbuild the middle class when it borrowed money to fight the Vietnam War, ignored how globalization harmed many Americans even as it benefited others, and cut taxes in ways that mostly benefited the wealthy and robbed the government of needed resources.

The Deal New regulated banks, transportation, and energy among other industries, in the 1930s. In the 1970s, there was a mostly bipartisan effort to reduce regulation in those industries. Although Ronald Reagan is known as the deregulation president, it was Jimmy Carter that started deregulation in each of those industries. Alfred Kahn, whom Carter appointed to lead the Civil Aeronautics Board (CAB), together with recently retired Supreme Court Justice Stephen Breyer, advised Senator Ted Kennedy on how to deregulate airlines. The deregulation of truck, railroad, bus, and transportation, along with natural gas deregulation, followed. Deregulation was based on policy evidence that changes in those industries made it possible to lessen regulation and depend on markets to achieve greater efficiencies. By comparison, Congress decision to reduce regulation of savings and loan banks, based on industry lobbying, ended in disaster as S&Ls failed because of risky behavior and Congress had to bail them out. On balance, the regulation that occurred rebalanced the mix of government and markets in order to achieve a more robust economy.

This chapter brings readers’ attention to the fact that throughout United States history, government has been an active and necessary part of building the country. In the colonial period, for example, laws regulating taverns and other businesses proliferated. After the Founding, under the leadership of Alexander Hamilton and the federalists, the central government was seen as the necessary force needed to support an economy that then enabled the country to participate on the world economic stage. The anti-federalists, led by Thomas Jefferson and James Madison, aceded to the need for the government to support the economy in the ways proposed by the Federalists.

Understanding the government’s role in achieving the nation’s fundamental political values provides a roadmap for appreciating why time after time, the country has expanded government sometimes in bunches and sometimes in smaller batches. Government has been necessary to create, sustain, and expand markets, to protect people from economic loss and physical injury, and to maintain a social safety net for people mired in poverty due to age, health, or market conditions, not of their doing. History establishes that the defenders of government have a good story to tell. But they must tell it. The future of the country depends on appreciating what the government does and why it does it because the government remains essential to achieving our nation and its values.

After the Progressive Era of the late 19th century, the unregulated financial markets boomed, encouraging people to go into debt to buy stocks, and when an economic boom went bust, the Great Depression ensued. FDR’s New Deal was a response to the failure of markets to protect people that led to the government taking on the responsibility of preventing, or at least moderating, economic dislocations, regulating the financial and banking systems, providing jobs as an employee of last resort, and establishing a social security system to protect the elderly and disabled Americans. The missing link in these efforts was racial justice, which was largely overlooked for political reasons. While FDR’s critics accused him of betraying capitalism, he in fact saved the market system from destroying itself.