Vol. 9 No. 12 (December 1999) pp. 541-543.
THE SUPREME COURT IN AMERICAN POLITICS: NEW INSTITUTIONALIST INTERPRETATIONS by Howard Gillman and Cornell
W. Clayton (Editors). Lawrence: University Press of Kansas, 1999. 302 pp. Cloth $40.00. Paper $17.95.
Reviewed by Stefanie A. Lindquist, University of Georgia, Department of Political Science.
Neo-institutionalism offers an alternative methodological orientation for scholars of law and courts, particularly
for those who have found the field's predominant focus on behavioral models of appellate court decision making
too confining. As I understand neo-institutionalism, it draws the scholarly camera back from the narrow focus
on individual judges to capture a more panoramic picture of the judiciary as colored and framed by complex, evolving
institutions. In THE SUPREME COURT IN AMERICAN POLITICS, editors Howard Gillman and Cornell Clayton offer a series
of essays that provide this more panoramic view of the Court. The essays are eclectic. Among the subjects explored
are the role of institutional norms and social practices in Supreme Court decision making (by John Brigham, Ronald
Kahn), the impact of institutional power on the development of judicial review (by Mark Graber), the Court's influence
on legal mobilization and partisan politics (by Michael McCann, John Gates), the effects of an institutionalized
D.C. bar on Court operations (by Kevin McGuire), the impact of institutional changes in the Senate and divided
government on the Court (by Mark Silverstein, Cornell Clayton), the link between the Court's decisions and the
generation of litigation (by Leslie Goldstein), and the ways that the justices' (sometimes implicit) views of human
relations, democracy and capitalism structure doctrinal development (by Susan Burgess, Keith Bybee, Howard Gillman).
Although broad in scope, the essays share one common characteristic that may best be defined in the negative: they
do NOT rely on attitudinal models of judicial behavior to explain the phenomenon of interest. Instead, they evaluate
the extent to which the Court influences and is influenced by broader political, economic, professional, and social
forces in the United States.
Although they all offer useful information, I found several of the essays particularly intriguing. For example,
Mark Graber's analysis of MARBURY V. MADISON (1803) provides a uniquely nuanced portrayal of the famous decision.
Graber argues that, in contrast to typical descriptions of the decision as a power grab, MARBURY better illustrates
the relative impotence of the Court. As Graber shows, in the MARBURY decision and others, the Marshall Court husbanded
its institutional authority by "vigorously asserting judicial power in theory while declining to exercise
it in practice" (at p. 36). From a completely different theoretical perspective ("Queer New Institutionalism"),
Susan Burgess explores the gendered meaning of Herbert Wechsler's famous description of activist courts as "naked
power organs" -- a phrase I
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have always found vaguely offensive. Burgess argues that sexual imagery and assumptions appear to structure certain
constitutional commentary and doctrines, relying on Queer Theory to develop her point. Viewing the Court as influenced
by the larger political scene, Cornell Clayton's analysis of consensual norms on the Supreme Court explores the
influence of divided government on Court appointments. In recent years, presidents have been forced to nominate
more moderate justices so as to avoid conflict with a Judiciary Committee dominated by the opposite party. The
consequence, according to Clayton, is a Court staffed by pragmatists whose fact-driven incremental decision making
often results in decisions that fragment the Court. Also, Kevin McGuire's discussion of the Supreme Court bar
reminds us that even the precise words in the Court's opinions are sometimes directly shaped by repeat litigators
before the Court. Members of the Supreme Court bar are influential gatekeepers who help determine the Court's
agenda and who control the flow of information to the justices -- a powerful institutional role indeed.
Although the essays are extremely readable, one might also ask how they rate as "applied" new institutionalism.
According to March and Olsen's (1984) seminal article defining new institutional approaches to politics, institutional
conceptions of order may take six forms: historical, temporal, endogenous, normative, demographic, and symbolic.
The essays in Gillman and Clayton's volume may all be characterized as studies exploring one or more of these
institutional ordering concepts. For example, Burgess's piece on Queer New Institutionalism focuses on the symbolic
nature of constitutional language. Goldstein's analysis of agenda setting in gender discrimination cases examines
the temporal nature of the agenda, as the Court's doctrines drive litigation trends and thus expand or contract
the Court's focus on gender cases. McGuire's essay addresses the demographics of the Supreme Court bar and the
bar's influence on the Court's decisions. Brigham's analysis of Court practices, norms and conventions reflects
the ways in which interests and preferences develop endogenously, within an institution. The remaining
essays could also be characterized through reference to these ordering concepts.
On the other hand, the institutional concepts identified by March and Olsen are extremely broad. New institutional
scholarship thus raises issues of falsifiability, especially (in my view) in its historical-interpretive mode.
Moreover, any approach that goes too far in severing the connection between theories of individual level behavior
and political structures and institutions risks the misinterpretation of aggregate trends and patterns. This having
been said, explaining the Court solely through references to the voting behavior of the justices is too narrow
- it is like explaining the game of baseball based solely on the actions of the individual players. Such
an explanation would obviously miss the larger point of the game. As part of the movement toward broader institutional
insights on the Court, the essays in the Gillman and Clayton volume make excellent contributions toward that end.
As a final point, I note that the editors have recently published with the University of Chicago Press another
volume of essays that adopt a new institutional orientation (Clayton and Gillman 1999); readers may be interested
in a comparison. In the volume published by Chicago, many
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of the essays rest on a positive theory of institutions (or rational choice perspective), while others adopt a
historical-interpretive approach to understanding institutional constraints. Moreover, some of the essays in the
Chicago volume analyze decision-making by state supreme courts as well as decision-making by the U. S. Supreme
Court. In contrast, the volume of essays published by the University Press of Kansas includes studies that adopt
a historical-interpretive approach and that focus on the role of the U.S. Supreme Court in the American political
system and the impact of the Court's decisions on political and social movements. Finally, these essays are suitable
for instructional use at both the graduate and undergraduate levels.
REFERENCES:
Clayton, Cornell W. and Howard Gillman, Ed. 1999. SUPREME COURT DECISION-
MAKING: NEW INSTITUTIONALIST APPROACHES. Chicago: University of Chicago
Press.
March, James G. and Johan P. Olsen. 1984. "The New Institutionalism:
Organizational Factors in Political Life." AMERICAN POLITICAL SCIENCE REVIEW, 78: 734-49.