Vol. 3 No. 4 (April, 1993) pp. 43-45
THE SUPREME COURT AND AMERICAN DEMOCRACY by David G. Barnum. New
York: St. Martin's Press, 1993. 348 pp. Paperback.
THE SUPREME COURT OF THE UNITED STATES: AN INTRODUCTION by Thomas
G. Walker and Lee Epstein. New York: St. Martin's Press, 1993.
207 pp. Paperback.
Reviewed by Richard A. Brisbin, Jr., Department of Political
Science, West Virginia University.
Instructors who teach introductory judicial politics classes or
introductory American politics classes will find much of value in
these two paperback textbooks designed to introduce students to
the U. S. Supreme Court. Although these books from St. Martin's
Press cover many of the same topics, there are several
substantial differences between them. Also, they differ in
several respects from competing books released by other
publishers.
Both David Barnum and Thomas Walker and Lee Epstein detail the
history and organization of the federal appellate courts, the
nature of judicial review, and the history of the Court. Walker
and Epstein are very terse in the discussion of these topics, and
they present data on judicial review through the use of their
favorite illustrative device, the line graph. Barnum offers an
additional discussion of the democratic character of judicial
review that is in keeping with his greater attention to the
normative dimensions of the judicial process, and his description
of court organization and jurisdiction, offered in a separate
chapter, and Supreme Court history, offered later in his book,
are much more elaborate.
Walker and Epstein then discuss the selection of the justices,
the justices' background characteristics, and court support
personnel. Barnum postpones the discussion of judicial selection
until covering other material and treats selection as a restraint
on Court decision making rather than as a variable affecting all
aspects of the work of the Court. In comparison to Walker and
Epstein, his approach offers somewhat less data on the justices
but adds historical information on the appointment process. Only
Walker and Epstein discuss departures from the bench.
Case selection receives extended treatment from Walker and
Epstein. They discuss trends in the Court's docket, with graphic
illustrations, and the certiorari decision making process with
special attention to the influence of the Solicitor General,
interest groups, and ideology upon this process. Barnum covers
the same topics, but his discussion of certiorari voting is more
formal, uses data less effectively to make its point, and is less
attentive to politics and the special role of the Solicitor
General. Barnum adds a boxed comment on the Solicitor General
later in the book, but he does not directly comment on the
special role of the Solicitor General in certiorari decision
making.
Both books review the process of Supreme Court action through the
announcement of opinions. In comparison to Barnum, Walker and
Epstein offer a neater summary of the structure of a term of the
Court, more information about opinion assignment, and graphic
information about dissenting and concurring opinions.
The discussion of decision making in orally argued cases in both
books proceeds from the individual level. Both books discuss the
attitudinal or ideological model of judicial voting, but each
qualify the strength of the model by discussing other individual
level political variables and legal variables. To his credit,
Barnum also notes the political environment within which the
justices' decision making occurs. However, his discussion often
moves incoherently from a discussion of external restraints as an
independent variable affecting decisions to a treatment of Court
decisions as an independent variable affecting on Congress,
president and the public. Only Walker and Epstein spend time
examining collegial pressures on decision making. Their depiction
of external variables affecting decisions concentrates on
interest groups and not on the Congress or president.
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The discussion of the outcome of Court action by Walker and
Epstein presents empirical information on the topic and
ideological direction of court decisions, then it moves on to
discuss the impact of decisions. The impact discussion follows
the population model of Charles Johnson and Bradley Canon (1984).
A final chapter cogently discusses whether the Court is a regime
supporter or a more independent policy maker. Barnum presents
data about the ideological direction of Court decisions with his
discussion of decision making. He does not sort out the effect of
the Court's decisions on external political actors very
effectively by employing a model like that offered by Johnson and
Canon. In his final chapters he presents the normative arguments
for and against judicial review. His final chapter assesses
whether the Court is a counter-majoritarian institution by
examining public opinion data about several major issues. In
contrast, Walker and Epstein offer only a passing reference to
the normative dimensions of appellate justice. Both books have
glossaries of terms, appended data on the justices, and either
chapter end or appended bibliographies for further reading.
A significant difference between these books is Barnum's
inclusion of seven case studies of constitutional decision
making. Although very brief and exclusively about rights and
liberties issues, the case studies afford the student a portrait
of the politics of the origins and impact of Supreme Court
decisions. Unfortunately, the studies are much stronger as
examples of how a case arrives at the Court and the construction
of opinions in the case than as examples of the policy impact of
the Court. They offer too little discussion of how a major rights
case is only the beginning of a political struggle, a struggle in
which the role of the Court is often minimal.
The primary competitors of these books are texts by Lawrence Baum
(1992) and Stephen Wasby (1988). Baum covers the same topics in
the same order as Walker and Epstein. His chapter on certiorari
decisions is better organized than either Barnum or Walker and
Epstein, and he makes more use of the new findings of H. W. Perry
about certiorari decisions. Baum's discussion of decision making,
featuring an ample presentation of data, is much more reliant on
the attitudinal or ideological model. His chapters on compliance
and impact use a unique policy implementation approach. He spends
less time on the Court and public opinion or legitimacy than does
Barnum, and he is less direct in considering the role of the
Court in the political system than Walker and Epstein.
Interestingly, on several occasions Barnum cites information
found in Baum's book.
Because he provides much more historical information and many
more examples of Court procedures and processes, Wasby's book is
much longer than the books of Barnum, Walker and Epstein, and
Baum. Also, Wasby provides more descriptive information and fewer
presentations of data about interest group litigation, federal
court administration, and the overall appellate process. However,
all of the additional detail makes his account less concise and
probably more distracting for the introductory student in an era
when many students regard reading as a chore.
Although each instructor must choose her text with consideration
of her pedagogical aims, as a discussion of judicial behavior in
the Supreme Court, this reviewer finds the Walker and Epstein
book to be a more logically organized and stronger summary of
existing knowledge. Barnum's is a book for instructors who want
to concentrate on the normative implications of the Court for
American democracy. However, instructors should be forewarned
that neither book discusses at length the vital role of the Court
in statutory construction and the oversight of the administrative
process. Barnum especially implies that the business of the Court
is judicial review. Also, neither book points to the uniqueness
and selective impact of the Supreme Court in American politics by
comparing it to the different but important policy roles of the
other levels of the judiciary which order family, debt,
accidental injury, criminal, and other socioeconomic problems.
Despite these caveats, both books have a useful role to play for
education in American
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judicial politics.
References:
Baum, Lawrence. 1992. THE SUPREME COURT, fourth ed. Washington,
D.C.: CQ Press.
Johnson, Charles A. and Bradley C. Canon. 1984. JUDICIAL
POLICIES. Washington, D. C.: CQ Press.
Wasby, Stephen. 1988. THE SUPREME COURT IN THE FEDERAL JUDICIAL
SYSTEM, third ed. Chicago: Nelson-Hall.