Vol. 5 No. 3 (March, 1995) pp. 91-94
SPECIAL ISSUE, JUDICIAL PROCESS TEXTS
Michael W. McCann, Editor
THE JUDICIAL PROCESS: AN INTRODUCTORY ANALYSIS OF THE COURTS OF THE UNITED STATES, ENGLAND, AND FRANCE by Henry J. Abraham. Sixth ed. New York: Oxford University Press, 1993. Paper $19.95.
Reviewed by Alec Stone (University of California, Irvine)
Henry Abraham's THE JUDICIAL PROCESS is one of the few political science textbooks to achieve true classic status. Now in its fourth decade and sixth edition, it has never been effectively challenged on the market. The book's remarkable success must be partly due to scope, delivering an historically rich, institutionally centered overview of the judiciary in multiple contexts. It is also coherently organized -- moving from an introductory discussion of the nature of law, to judges, courts, courtroom procedure. and juries to whole legal systems, and finally to an extended examination of the U.S. Supreme Court and judicial review. As important, Abraham writes in an engaging style, avoiding jargon and mixing abstract analysis with hundreds of flesh and blood examples. Even the notes (and they are blessedly at the foot of the page) are packed full of facts and stories, bits of trivia informative, charming, or bizarre. In short, the book provides a readable, relatively and seemingly) comprehensive account of the role and function of courts.
THE JUDICIAL PROCESS is also an old fashioned book. No explicit theoretical or conceptual apparatus structures the enterprise. No proclaimed normative concern informs the presentation. Instead, the author seems to presume that readers share a common reverence for law, robes, and courts, and especially for constitutional law, Supreme Court justices, and judicial review. For those who believe that the American legal system and constitutionalism are in crisis, the book may seem at best out of touch, at worst an apology. Further, the basic template for this text was cast in the early 1960s, yet the concerns of many ( most?) public law political scientists have moved far beyond Abraham's. It is revealing that the book contains no sustained treatment of constitutional rights or the evolution of rights politics (though Abraham is the author of a book on constitutional liberties that is also in multiple editions), the explosion of public interest litigation, of administrative law and the regulatory state, or the interaction between courts, legislatures, and executives in the making of public policy. Surely the judicial process is today full of all of these politics, and surely the judicial process infects other forms of politics.
A truly updated version would also discuss how political scientists study and understand judicial politics. Abraham neither describes nor assesses different schools of public law analysis. Although Abraham deals with various (potential) influences on the Supreme Court's work, there is no debate between, say, proponents of attitudinal models and traditional or new institutional jurisprudential analysis. There is also no attempt to conceptualize politico-legal culture, or to link "society" with the judiciary. Courts, for the most part, seem to reside in their own space, and the judicial process is what animates that space.
For some teachers, the old fashioned nature of the text may be part of its attraction.
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One set of criticisms, however, deserves emphasis. Despite the book's subtitle, this is not a comparative work. At most, foreign court systems provide Abraham with convenient shadow cases, foils for elaborating on or differentiating the American case. Chapter 6, entitled "Courts Abroad," is the shortest chapter in the book (25 pages). The chapter is also by far the most outdated (the reference notes suggest that the French section has not been revised since the 1970s). England gets better treatment than France, probably because the American legal system is rooted in common law soil. The chapter actually contains, in the section on French courts, more discussion of American case law than French case law. That this book included any non-Anglo-Saxon cases at all may have been progressive in earlier decades, but not today. Indeed, I believe Abraham's treatment actually hinders our comparative understanding of the political role of courts in the world.
Abraham's ultimate focus is on constitutional judicial review, nearly Ç of the entire text is devoted to the Supreme Court and review. In 13 pages of chapter 7, the author assesses the status of foreign review systems, which never measure up to "the full majesty and range" of American review (p. '70). The American system is "true," "full," or "bona fide" review; the Kelsenian model, found in Europe and Latin America, comes off as a strange creature, but only because it does not conform to the American model. We need to recognize that American "judicial review" is only one, comparatively rare form of "constitutional review" -- the power of an institution to control the acts of government for constitutionality. In fact, American review is by far the stranger creature: Kelsenian review is now installed in Austria, Belgium, the Czech Republic, the European Union, France, Germany, Italy, Poland, Portugal, Slovakia. Rumania, nearly all of the former Russian Republics, Spain, and in many Latin American polities. In these systems, the ordinary judiciary does not have the power to control constitutionality, though judges may refer constitutional questions to specialized, constitutional courts, which alone possess the power of review. The establishment of these courts has restructured the work of the judiciary as a whole (though Abraham does not examine the crucial interactions between the judiciary and constitutional courts beyond stating that they are "found outside or astride the ordinary court structure" (p. 293).
Abraham's discussion of review beyond U.S. borders is riddled with errors, breezy generalizations, and serious omissions. It is not true that the French Constitutional Council is still considered "an adjunct of the President of the Republic" (p. 292), though one could still have made that argument until 1975 or so. In fact, the Council functions as a powerful check on executive dominance. It is not true that "the practice of judicial review in its ultimate and awesome U.S. application ... is not likely to be found in nonfederal states" (p. 288) -- as the list above makes clear -- unless we are wedded in advance to a restrictive, virtually sui generis definition of review. It is not true that British courts may not set aside legislation (p. 288): British judges do so, when statutes violate what is in effect the constitution of the European Union, a constitution which includes an embryonic bill of rights. It is not even the case that the U.S. Supreme Court does more review
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of national or federal legislation than do other courts. According to Abraham's figures. the Supreme Court has pronounced only 140 "declarations of unconstitutionality" in the 1798-1990 period, and only 66 since 1946 (pp. 272-87). In its first three decades (1959-90), the French Council has pronounced 87 such declarations; the German Court has reviewed over 20% of ~ federal laws adopted since it began functioning (1951), and has declared over 5% - several hundred -- at least partly unconstitutional. In brief, constitutional review is flourishing abroad, but the reader would never know this by reading Abraham's book. Basic information on, and social science analysis of, foreign courts and review is readily available. In the past six years alone, two books on European constitutional law and politics (Donald P. Kommers on Germany and Alec Stone on France) have been published and special issues of four scholarly journals (WEST EUROPEAN POLITICS, POLICY STUDIES JOURNAL, COMPARATIVE POLITICAL STUDIES, and the INTERNATIONAL POLITICAL SCIENCE REVIEW) devoted to comparative judicial politics and review have appeared.
These criticisms aside, THE JUDICIAL PROCESS remains an old and useful friend. I assign it in two courses. In my Introduction to Law course, which employs materials drawn from legal anthropology, American and European judicial politics, and international relations and international law. We read parts of THE JUDICIAL PROCESS as a supplementary text on the American case. I do not use the comparative sections of the book at all, for reasons stated. In my writing seminar, Constitutional Politics, students divide themselves into lawyers, judges, and political scientists, and try a case as a Supreme Court. The lawyers submit briefs to the Court; the judges draft decisions; and the political scientists analyze the entire process as judicial politics. Abraham's emphasis on the Supreme Court and judicial review works to great advantage here, informing the efforts of each group. In chapter 5, the author guides readers along each stage of the process, from the processing of writs of review to problems of compliance with the Court's decisions. This is Abraham at his best and most entertaining. The author regales students with the pomp of "this most impressive and most dignified of all governmental bodies" (p. 188) at oral argument, but also provides snippets of petty bickering between Justices interrupting counsel. We are taken "behind closed doors," and given glimpses of the intricacies of the Court's internal decision-making procedures, the politics of assigning opinions, and the quest for a stable majority in the face of concurrence and dissent. Along the way, the impact of clerks, the solicitor general, amicus briefs, social science data, and even legal periodicals is weighed. In chapters 7, 8. and 9, Abraham presents a nuanced case in favor of judicial review, assessing the immense power of review but also its limitations. For the purposes of my course, these chapters could not be better. The text provides an accessible discussion of the Court, its decisionmaking processes, and of judicial review, pushed at every stage by beautifully chosen examples drawn from the institution's entire history. Students not only learn a great deal about what they will be doing as lawyers or judges, but they enjoy reading and discussing the text as well. Finally, I strongly urge students who are going to pursue a law
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and politics concentration within a political science major to purchase the book for reference purposes. THE JUDICIAL PROCESS is an extraordinary storehouse of basic information on the American legal system. thoughtfully organized and clearly written.