Vol. 17 No. 1 (January, 2007) pp.66-70

 

INSIDE THE JUDICIAL PROCESS: A CONTEMPORARY READER IN LAW, POLITICS, AND THE COURTS, by Jennifer Segal Diascro and Gregg Ivers (eds.). Boston: Houghton Mifflin Company, 2006. 507pp. Paper. $73.56. ISBN: 0618391827.

 

Reviewed by Holley Tankersley, Department of Politics, Coastal Carolina University. Htankers [at] coastal.edu.

 

In the introduction to the first chapter of their new textbook, INSIDE THE JUDICIAL PROCESS, Jennifer Segal Diascro and Gregg Ivers remind us that “In the end, the act of judging is a political act.”  Indeed, INSIDE THE JUDICIAL PROCESS, places the study of law and courts right where it belongs: at the center of American politics.  While the political theme of the book is apparent, Diascro and Ivers set out to achieve the secondary goal of presenting an informative, entertaining, and accessible collection of readings.  To that end, the book utilizes a wide variety of court cases, scholarly articles, and interviews and historical documents to firmly place judicial institutions, processes, and outcomes in their proper political context.  Although all of the contributions to INSIDE THE JUDICIAL PROCESS have been previously published, the editors have effectively structured the collection to put a fresh spin on this introduction to the study of law, politics, and the courts.

 

While its adherence to a clear and vital theme – the role of politics in law and courts – is enough to make INSIDE THE JUDICIAL PROCESS worthy of any scholar’s attention, the strength of the text rests in its structure and content.  Each chapter begins with a brief introduction to the topic at hand, followed by a summary of the selected readings that comprise the chapter.  Diascro and Ivers proceed by organizing the readings within each chapter around four sub-themes: “Foundations and History,” “Contemporary Judicial Politics,” “A View from the Inside,” and “A Comparative Perspective.”  Consistent organization within chapters makes the text particularly well-suited for both undergraduate and graduate students who are searching for a comprehensive introduction to judicial process.

 

Two of the chapter sub-themes, “A View from the Inside” and “A Comparative Perspective,” are especially noteworthy.  First, the primary sources used to represent the “View from the Inside” provide students with the unique perspective of those political and institutional actors who make the decisions that impact judicial outcomes. Essays from former and current Supreme Court justices, interviews with legal professionals, and Supreme Court opinion texts all give the reader valuable insight into judicial processes, thought processes, and norms of behavior.  In addition to providing students with an insider’s view, these [*67] selections meet the editors’ goal of presenting intriguing material that will stimulate student interest in studying judicial politics.  Second, Diascro’s and Ivers’ inclusion of the comparative perspective is a refreshing addition missing from other texts aimed at undergraduates.  These selections include Bell’s article comparing class action lawsuits in the U. S. and Scotland, Kiss’ description of the Japanese debate over whether to reinstate jury trials, and excerpts from Charles Epp’s book comparing courts in the US, Canada, Great Britain, and India.  Understanding judicial theory, politics, and process across other societies and political systems is crucial for today’s students, who are studying during a period of rapid economic and political globalization.

 

The excellent opening chapter anchors the entire text by establishing the constitutional context of judicial behavior.  The selections included in the chapter place a particular emphasis on the question of judicial independence within a democratic political system that champions majoritarianism.  While classic primary sources, such as THE FEDERALIST and MARBURY v. MADISON are used to set the stage for debate about judicial independence, Diascro and Ivers explore the arguments on both sides by using an essay by Chief Justice William Rehnquist and the transcript of a speech by Justice Thurgood Marshall.  The contrasting viewpoints of these esteemed jurists provide students with a fascinating look at the thought processes of judicial decision makers. Cass Sunstein’s explanation of the “myth of neutrality” (p.2) and Howard Gillman’s analysis of the BUSH v. GORE (2000) decision set the modern context of the scholarly debate surrounding the idea of judicial independence and politicized decision making. 

 

Other chapters investigate the social and political forces that influence judicial decision making.  Several articles describe the persistent differences between judicial scholars who argue for the dominance of the attitudinal model and those who adhere to the legal model of judicial decision making.  Howard Gillman presents a clear and concise narrative of this debate, while a 1992 APSR article by Tracey George and Lee Epstein discusses the emergence of the extralegal model and suggests that future research synthesize both the attitudinal and legal models.  Diascro and Ivers also devote a chapter to the structure of the appellate court system and the nature of judicial decision making at the appellate level.  From the Ninth Circuit’s decision in NEWDOW v. U. S. CONGRESS (2002) to Schkade’s and Sunstein’s evidence that judicial partisanship has a quantifiable impact on case outcomes, the addition of an entire chapter on appellate courts is a welcome addition to the text.  At the very least, students will learn how to apply the principles of judicial process beyond the narrow confines of the Supreme Court. 

 

Chapters 3 and 4 address the institutional structures and procedural rules that establish boundaries and constraints for judicial decision making.  Congressional documents outlining the 2002 debate surrounding the proposed reorganization of the Ninth Circuit Court of Appeals and Supreme Court documents describing the controversial Foreign Intelligence Surveillance Court provide the reader with an understanding of the structure of the American federal court system.  These primary sources, when combined with selections that analyze [*68] Supreme Court monitoring of state courts, provide the reader with a comprehensive understanding of the complexity of judicial federalism.  Chapter 4 outlines the “Politics of Judicial Selection,” with an emphasis on the impact that procedural rules have on judicial decision making.  By including REPUBLICAN PARTY OF MINNESOTA v. WHITE (2002), as well as a 1999 interview in which Justices Breyer and Kennedy address the impact of judicial elections on judicial neutrality and independence, Diascro and Ivers highlight the importance of studying state court systems.  The inclusion of studies of state judicial selection sets INSIDE THE JUDICIAL PROCESS apart from most introductory judicial process texts, which are plagued by upper-court bias and a preference for federal courts.  

 

One of Diascro’s and Ivers’ stated goals is to make the study of judicial process both entertaining and accessible to undergraduate students.  They go a long way towards meeting this goal by including chapters that describe the influence of lawyers, legislators, citizens, juries, and law enforcement officials on judicial process and outcomes.  The editors include de Tocqueville’s veneration of lawyers and juries as linchpins of democracy as well as Rohde’s description of public dissatisfaction with the legal profession and suggestions for its reform.  Justice Breyer discusses the political compromises that were made in the development of federal sentencing guidelines; an excerpt from UNITED STATES v. BOOKER (2005) examines the adjudication of these guidelines.  The role of group forces in the judicial process is the topic of articles by Vose, O’Connor and Epstein, and Kearney and Merrill.  These selections analyze the historical significance and relative success of “test case” strategies and amicus curiae participation.  By describing the impact of ordinary citizens on judicial decision making, Diascro and Ivers pull the judicial process within the reach of students who might otherwise find the federal court system too distant to be personally relevant.

 

A final group of chapters details the role that litigation plays in producing democratic outcomes and bringing about social and political change.  Because INSIDE THE JUDICIAL PROCESS builds upon the assumption that the judicial process is implicitly political, these readings go beyond normative questions about the policymaking role of the judiciary to assess both the relationship between the courts and public opinion and judicial [*69] impact on the political system.  While many judicial scholars are preoccupied with the countermajoritarian tendencies of the judiciary, David O’Brien uses the historical example of BROWN v. BOARD OF EDUCATION (1954) to reassure critics that the Supreme Court is capable of maintaining its institutional legitimacy while being adequately responsive to public preferences.  Funston assesses the conditions under which judges are likely to act as policymakers.  Finally, Yates and Whitford and Gibson and Caldeira ask whether an active role in policymaking diminishes the Supreme Court’s legitimacy and effectiveness.  Judicial impact on social compliance and policy outcomes is the topic of Dolbeare and Hammond’s examination of the Court’s decisions on school prayer, while Songer and Sheehan investigate the degree to which lower courts comply with Supreme Court rulings.  Diascro and Ivers have also included Gerald Rosenberg’s classic argument that the courts fall well short of being the reform agents that previous scholars had described. 

 

INSIDE THE JUDICIAL PROCESS is a modern, informative, and comprehensive textbook that will be a fantastic addition to the library of texts available to professors and students.  It presents theoretical concepts and empirical evidence in a way that is both entertaining and accessible to undergraduate students.  Its strength is its content and structure; however, its one significant weakness is its price, which the publisher lists at $73.56.  This weakness cannot be attributed to the editors, as they have no control over the pricing.  However, it would be a shame if the price dissuades professors from choosing this wonderful new text.  

 

Another potential weakness lies in the text’s thematic bias.  INSIDE THE JUDICIAL PROCESS has a decidedly behavioral tone, favoring the attitudinal model of judicial decision making throughout its chapters.  However, Diascro and Ivers have done an exceptional job of representing all sides of the scholarly debate by including selections from scholars who favor more traditional models of legalism.  The editors also clearly accept the assumption that judges are active policymakers, but draw no conclusion as to whether this is the desired state of affairs; they simply recognize that judicial decision making is implicitly political. 

 

INSIDE THE JUDICIAL PROCESS benefits from the strong editorial comments that open each chapter.  These summaries are well-written and provide an excellent synthesis of the readings within the chapter.  They also pose questions to the reader – for example, in introducing Australian jurist Michael Kirby’s essay on original intent, Diascro and Ivers pose a simple yet important question, “Do you think that a comparative perspective offers insight into how American judges handle their responsibilities?”  Diascro and Ivers have also included up-to-date cases (e.g., ZELMAN v. SIMMONS-HARRIS (2002)), current controversies in law and politics (e.g., BUSH v. GORE, the Foreign Intelligence Surveillance Act), and on-going theoretical debates to make the text timely and interesting for today’s students.  With its emphasis on critical role of the courts in democratic society and its editors’ determination to compile a text that can both engage and inform undergraduate students, INSIDE THE JUDICIAL PROCESS is a welcome addition to the judicial process bookshelf.

 

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

 

BUSH v. GORE, 531 U.S. 98 (2000).

 

MARBURY v. MADISON, 5 U.S. 137 (1803). [*70]

 

NEWDOW v. U. S. CONGRESS, 292 F.3d. 597 (9th Cir. 2002).

 

REPUBLICAN PARTY OF MINNESOTA v. WHITE, 536 U.S. 765 (2002).

 

UNITED STATES v. BOOKER, 543 U.S. 220 (2005).

 

ZELMAN v. SIMMONS-HARRIS, 536 U.S. 639 (2002).

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© Copyright 2007 by the author, Holley Tankersley.