Vol. 11 (September 2001) pp. 446-448.

by Matthew H. Bosworth. Albany, NY: State University of New York Press, 2001. 290 pp. Cloth $68.50. ISBN: 0-7914-5013-9. Paper $22.95. ISBN: 0-7914-5014-7.

Reviewed by James N. G. Cauthen, Department of Government, John Jay College, The City University of New York, New York, NY.

To what extent, if any, do courts participate in the shaping of public policy? Increased attention has been paid to this question in the ten years that have passed since the publication of Gerald Rosenberg's THE HOLLOW HOPE (1991), and political scientist Matthew Bosworth makes his contribution in COURTS AS CATALYSTS. Focusing on state high court decisions from three states (Texas, Kentucky and North Dakota) that addressthe constitutionality of their public school financing systems, Bosworth argues that courts can be active and relevant participants in dialogues over public policy. Although a number of existing works have sought to explain WHY a state court finds its school financing system to be unconstitutional, Bosworth's focus is on the extent to which courts, through their decisions, play a role in the reform efforts in their states. In short, this is a work addressing the potential of courts to contribute to the shaping of significant public policy, not one explaining why they choose to do so.

Although Bosworth relies on a vast array of sources to assess the impact of the decisions of the three courts, a real strength of his work is his use of interviews conducted with ninety-four legislators, executive branch officials, justices and observers in the three states, all of whom remain anonymous. He sets out in the appendix the numerous questions asked of the interviewees in each state, although the answers he most incorporates in the text are to his questions dealing with whether the educational policy changes adopted would have occurred without court intervention, i.e., whether the courts exerted an "independent influence" in the reform process.

The book is divided into six chapters. The first introduces the reader to the debate over the role of courts in achieving social reform, presented in
large part with an emphasis on the work of Rosenberg and his critics. In addition, Bosworth outlines his approach here, viewing courts as one of many
forces that converged to produce the educational reforms in each of the states studied. Indeed, he really must treat them this way given his emphasis on
school finance policy, because, in the end, the development and implementation of that policy required legislative participation.

In Chapter 2, Bosworth describes the modern history of school funding litigation, at both the federal and state levels. Once the U. S. Supreme Court recognized in SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. RODRIGUEZ (1973) that education was not a fundamental right under the U. S. Constitution, most state courts,

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including those studied here, began to turn to their state education clauses and/or state equal protection clauses to address the constitutionality of state financing systems. These state education clauses generally fall under one of three categories--some require a system of "free public schools," some require the system to be "general and uniform," and others require states to develop and maintain a system of "thorough and efficient" public schools.

The three case studies are presented in Chapters 3, 4 and 5. In part, Bosworth selected Texas, Kentucky and North Dakota because their courts had assumed different roles in the educational reform process relative to the other branches. In each chapter he provides an overview of the state's education financing policy, including detailed descriptions of the events leading up to filing of the lawsuits challenging the system, the court's decision and the ultimate reforms adopted by the legislature. He then identifies the contributions of various actors and institutions within the state to the development and adoption of the reforms, focusing on interest
groups, the public, the media, the executive branch, the legislative branch, and the state supreme court.

With significant reliance on the interviews, Bosworth provides evidence that in each of the states, the supreme court contributed to the development of the finance reform ultimately adopted; however, the manner and the extent of the contribution varied across three states. In Texas, the state high court repeatedly revisited the school finance issue after its original decision to insure the legislature was following its mandate. By constantly remanding its decisions back to the lower court for additional proceedings, Bosworth noted that the court appeared to serve as a "negotiator" with the legislature, making certain that the ultimate reforms adopted met the principles set out in its decisions. The legislators clearly were frustrated with the court but ultimately complied with it, in part because of fear of court-ordered closing of schools or implementation of a court-developed financing plan. In Kentucky, the court, labeled by Bosworth as a "path-breaker," took a different tack, issuing a broad and sweeping ruling finding the entire system of education unconstitutional and setting out in its decision specific characteristics of an "efficient" educational system. In contrast to the Texas court, the Kentucky Supreme Court made no provision for future proceedings to oversee the implementation of the decision. However, the legislature eventually adopted a broad reform package. It was consistent with the Court's decision, not because of fear of court backlash, but because it and the other interests in school reform (there were many) could contribute to the ultimate legislation within the parameters of the court decision.
Additionally, these interests were able seek refuge within the court's decision to protect them from political fallout.

The third case study, North Dakota, differs from the other two in that the court actually upheld the educational financing system in the state (a super-majority of four out of the court's five justices are needed to strike down legislative acts, and only three supported a finding of unconstitutionality). However, Bosworth includes this state's decision because the court was a "threatening court," in that the Chief Justice, who cast the deciding vote, urged the legislature to make changes to the
financing system or risk a different result in the future. Although the changes made understandably were not as sweeping as those in the other states, the
legislators Bosworth interviewed

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noted that they would have made even more minor changes without the court's threat.

In each of these case studies, Bosworth succeeds in showing that the state supreme court, while not the sole cause of reform, was nonetheless an integral player. In Texas and Kentucky, and to a lesser extent in North Dakota, courts made significant contributions, serving as catalysts to bring together existing forces to create something that would not have been created without the courts' involvement. However, as he correctly recognizes, his case studies do not provide the necessary variation to reach any definitive conclusions about the conditions under which a state supreme court is likely to become a significant player in the policymaking process.

Bosworth devotes a major portion of his concluding chapter to refuting Rosenberg's view of courts and social reform. Much of this effort could have been redirected toward a preliminary development of his own construct of state supreme court participation in social reform, which his study shows may be significantly different than participation by the U. S. Supreme Court (Rosenberg's focus). For example, the Kentucky interviews evidenced that members of the court and legislative leaders were both part of the small class of political elites in the state, thereby increasing the court's influence with the legislature. In addition, state courts may find it easier to
participate in the policymaking process in an issue area if courts in other states previously had some success. For example, the decisions examined here were rendered as part of a much broader reform movement in the states, possibly giving the courts making decisions later in the movement a greater opportunity to contribute to the policy process. Bosworth gives little attention to this influence, although he notes that one reason he selected the courts he did was that their decisions were rendered in the last period of the reform movement, possibly allowing the earlier decisions to inform the three courts "in devising their persuasive strategies" (p. 53).

With any study focusing single policy area, the reader is left to speculate about the application of the findings to other policy areas. It could be that school financing cases are a different breed, given that in each of these states, school reform was, to varying degrees, on the agendas of legislatures, governors, interest groups, and/or the public before the court acted. Possibly these interests were sufficiently aligned in the states for the courts to play the roles Bosworth identifies, but will they be so aligned in other areas? Must they be? If not, what conditions promote this policymaking?

Many of these latter comments are more questions for future research than limitations of this work for, in the end, Bosworth has produced a solid piece of scholarship showing us more about the complex political, social and economic environments in which state supreme courts operate and providing evidence that these courts have the capacity to play meaningful roles in social reform in the states.


Rosenberg, Gerald N. 1991. THE HOLLOW HOPE. Chicago: University of Chicago Press.



Copyright 2001 by the author, James N. G. Cauthen.