Vol. 5 No. 2 (February, 1995) pp. 42-46

SPECIAL ISSUE, JUDICIAL PROCESS TEXTS
Michael W. McCann, Editor

THE AMERICAN COURTS: A CRITICAL ASSESSMENT by John B. Gates and Charles A. Johnson (Editors). Washington: Congressional Quarterly Press, 1991. 534 pp. Paper $32.95.

Reviewed by Susan Olson, Department of Political Science, University of Utah

Gates and Johnson's AMERICAN COURTS is unique in being a comprehensive judicial politics textbook that is neither written wholly by one or two authors nor a collection of (probably excerpted) articles from many sources or authors. It is instead a set of eighteen essays written for this volume by well-known scholars in different specialties within judicial politics. The editors' charge to the authors was "to review contemporary theoretical developments regarding the chapter topic, discuss relevant empirical findings, and describe what future research might be done in the area" (p. ix). They have done that well.

I have used the book as a core text, supplemented by many articles, in a seminar for graduate students in American politics, most of whom would have no other class focusing on courts and the legal system. The book could also be used with advanced undergraduates if they have some feel for the research process and a descriptive knowledge of court organization and processes. All of the essays provide solid literature reviews of the major issues surrounding their topic, and most include some critique of the literature. Several also incorporate some kind of case study to illustrate the themes discussed, and a few even present original research or conceptual frameworks.

As its name suggests, the book is limited to American courts, but it does include state and federal, trial and appellate courts. The organizational scheme of the book combines institutional and behavioral approaches, which could make it difficult to mesh with a syllabus exclusively organized around one or the other. The eighteen essays are organized into five Parts and a Conclusion: Judicial Policy Making, Judicial Selection, Judicial Decision Making, Courts and External Pressures, and Policy Impact and Innovation. Each of these will be discussed in order.

Organized by level of court, Part I reflects great diversity in approach that can stimulate good discussion about what constitutes judicial policy making. The first essay, by David Adamany on the U.S. Supreme Court, begins with a summary of the debate over the legitimacy of judicial review. This essay is more normative than the others, presenting evidence of judicial discretion in both agenda and merits decisions and rebutting the most common arguments in favor of judicial review. The essay ends with a brief historical overview emphasizing critical elections theory and suggestions for future research.

Donald Songer's chapter on the federal Courts of Appeals assesses their policy role from the perspectives of types of cases on their dockets over time, the judges' degree of discretion in interpretation, their finality, and patterns of substantive outcomes (winners and losers). Policy making in both a micro (individual judge) and macro (collective court) sense are presented. He concludes with a discussion of the tension in the circuit courts' role between forces of regionalism and national uniformity.

Page 43 follows: C. K. Rowlands' chapter on federal District Courts takes a narrower focus, discussing only the micro-level decision process of individual judges, but he includes policy making through remedy formulation as well as legal interpretation. He also advances an original conceptual framework, "social cognition," as helpful for assessing the combination of legal and extra-legal influences on judicial policy making.

The chapter on "Policy Making and State Supreme Courts" by Henry Glick shares many common themes with the others, such as the importance of courts' agendas for their opportunities for policy making and the significance of judicial review. In addition, he offers a thoughtful critique of judicial activism as a concept for organizing research and explores inter-court relations via the adequate and independent state grounds doctrine and interstate citation patterns. He concludes with a discussion of "right to die" policy as an illustration of research that combines advantages of case study and aggregate data.

The last chapter in Part I is Lynn Mather's on state trial courts. Her essay argues that such courts do make policy and develops an analytical framework of the policy significance of different stages in litigation. This chapter also differs from most in giving substantial attention to the contribution of actors other than judges in mobilizing court policy making. She concludes with a case study of a contract dispute that illustrates her framework.

Part II on judicial selection is divided into one chapter on state and one on federal judicial recruitment. The state chapter by Charles Sheldon and Nicholas Lovrich goes beyond a review of existing literature to propose an original approach to the classic question of whether selection method makes a difference. They break selection into distinct steps and suggest that the number of participants at each stage influences the balance the court strikes between independence and accountability and the likely representation of women and minorities on the bench. They then test their theory on judicial recruitment in Washington and Oregon.

Sheldon Goldman's chapter on federal recruitment straightforwardly discusses the importance of studying judicial recruitment and backgrounds, the process used to select federal judges, the characteristics of persons so chosen, and the likelihood that the present system selects the most qualified candidates.

Part III, Judicial Decision Making, includes one chapter on trial courts and two on appellate courts. The chapter on trial courts by Herbert Jacob contrasts the literature considering the trial court as a system with that organized according to individual participants (e.g., judges, police, prosecutors, defense attorneys, juries, and private attorneys and litigants). He elaborates on the organizational paradigm as a good focus for future research.

H. W. Perry's chapter, "Agenda Setting and Case Selection," concentrates on the U.S. Supreme Court since the most explicit case selection occurs there. He reviews and critiques the competing

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explanations for how the justices choose cases and recommends future research directions.

James Gibson's chapter on appellate decision making emphasizes the U.S. Supreme Court, but weaves in what research on U.S. Courts of Appeals and state supreme courts is available. He organizes the research into that focusing on the micro level (judicial values, judicial role orientations, and case facts) and the macro level (institutional, organizational, and environmental constraints) and calls for more research bridging the two levels.

Part IV, Courts and External Pressures, includes chapters elaborating on the courts' interactions with five of the macro level forces Gibson touches on in discussing decision making. Wayne McIntosh's chapter, "Courts and Socioeconomic Change," addresses the effects of socioeconomic change on the structure and use of courts, not courts' ability to bring about social change. This chapter is conceptually the broadest piece in the book, addressing questions such as "what is a court" and "what constitutes change" and tracing these questions back to Durkheim, Weber, and Marx. He presents three theories about the relationship between socioeconomic development and litigation rates and illustrates with his own longitudinal study of 150 years of cases in St. Louis, Missouri.

"Courts and Public Opinion" by Greg Caldeira succinctly reviews and critiques the literature on three aspects of their relationship: if courts are able to influence public opinion and legitimate policies, if public opinion influences court decisions, and what shapes the public's opinion of courts and influences diffuse and specific support for them.

Lee Epstein's chapter on interest groups begins with a history of the study of interest group litigation and its somewhat awkward position between the study of courts and the study of interest groups. She provides a thorough summary of literature on the range of strategies and tactics groups use in litigation, the frequency of group litigation, the types of groups participating, the types of issues attracting amicus briefs, and the thorny issue of the efficacy of group litigation. Woven throughout are illustrations from BOWEN V. KENDRICK, a 1988 Establishment Clause case, and suggestions for further research.

"Courts, Executives, and Legislatures" by Jeffrey Segal addresses "cooperation and conflict between the judiciary and its coordinate branches of government" (p. 373). This chapter overlaps with David Adamany's on Supreme Court policy making more than any other two chapters do, but both are distinct and worthwhile. For example, both discuss critical election theory, but Segal goes into more detail on the Dahl-Casper debate about the extent to which the Court has been counter-majoritarian. Segal also reviews and critiques the literature on the role and influence of the Solicitor General and on various court-curbing measures.

Part IV concludes with a chapter on caseloads by William McLauchlan. This chapter is a logical extension of McIntosh's because it addresses the impact on courts of the growing caseloads that are McIntosh's dependent variable. McLauchlan moves from

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the significance of growing caseloads for the quality of justice to the distinction between caseload and workload. He proposes a typology for evaluating caseloads.

Part V, Policy Impact and Innovation, contains two essays. Lawrence Baum's chapter on policy innovation presents what is probably the least familiar approach in the book, comparing policy innovation by courts to the social science study of other types of innovation. Baum acknowledges it is not always meaningful to distinguish judges' responses to innovations from their responses to other policy options, but concludes that this framework can provide useful insights into sources and diffusion of new doctrines and patterns of intercourt influence. He also argues innovation is a good concept for comparing courts with other governmental institutions.

"Compliance, Implementation, and Impact" by Bradley Canon summarizes the major contributions to this field by Canon and Charles Johnson in their earlier book: several explanatory theories for judicial impact and a typology of affected populations. Canon reflects on the apparent decline of impact studies and makes suggestions for future research in this area.

The book concludes with a final chapter by John Gates, "Theory, Methods, and the New Institutionalism in Judicial Research," in which he criticizes the field for insufficient attention to empirical theory--especially to the rational choice and game-theoretic approaches popular in other subfields of American politics. He attributes this in part to continuing tension between quantitative and qualitative approaches in the subfield and urges greater interaction between the two. Finally, Gates assesses Rogers Smith's call for a "new institutionalism" and cautions that good research must lead to hypotheses that contribute to explanatory theory, not just description.

This last chapter reflects the perspective that almost all the essays share--that explanation is a matter of seeking generalization and predictability as opposed to the more interpretive perspective that explanation consists of understanding meanings. Mather's and McIntosh's essays contain elements of the latter perspective, but instructors who want to expose students to these alternatives will need to supplement this book with other readings. The book is also unabashedly court-centered. It focuses on policy made by the filing of court cases and judicial decision of them, rather than the broader senses in which law structures human interaction.

I found the book to be well written, interesting, and authoritative on the topics it covers. The individual authors provide appropriate figures and tables to accompany their discussions. The cost, currently listed at $32.95, is probably higher than most ordinary texts, but I think is justifiable for the original essays. All this said, I have to acknowledge that my eight graduate students were not that crazy about the book. Most found the chapters not very engaging reading compared to the primary research articles we read. Half the students at least granted that the book was valuable as a reference, and two emphatically liked it.

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I would still use the book again for a similar class until it becomes too outdated. Perhaps I could have affected the students' attitude by using the book as the focus for discussion more than as background. I also suspect the students' appreciation of it may increase as they are reviewing for their comprehensive exams. I believe it is a fine book and would recommend it to colleagues.