The focus of this work is on the exercise of judicial review by state supreme courts, and the conditions under which judges choose to invalidate state statutes. Though Langer addresses the major schools of thought on judicial decision-making, she concludes that the behavior of state supreme court justices is best understood not by relying too heavily on any one of them, but incorporating each into a more comprehensive view of judicial behavior. This is one of the major strengths of the book that the author is willing and able to draw on the attitude theory, separation of powers models, and neo-institutionalist approaches to provide explanations of state judicial behavior. Langer argues that state supreme court justices are motivated, in large part, by a fear of retribution from state legislatures and the governor. They are best understood as policy maximizers who wish to avoid conflict in order to preserve their electoral safety. State judges pursue their policy preferences within the bounds placed on them by the institutional rules and preferences of the legislature and governor.

Langer adopts a separation of powers framework, where "….justices are rational actors who pursue at least two goals: (1) translating their sincere preferences into public policy, and (2) retaining their seat on the bench" (p. 39). She explores the use of judicial review by state supreme court justices in four areas of law: campaigns and elections, worker's compensation, unemployment compensation, and welfare legislation. These issue areas are chosen because, when judges decide to overturn decisions of the state legislature, the differences in the level of policy saliency of each issue area afford judges varying degrees of protection from
external pressure or censure. In addition to the saliency of the issue area involved, political and institutional conditions, such as judicial preferences relative to those of the legislature and governor, are factored into the analysis. Langer goes on to discuss the political conditions that are expected to expand or contract a judge's "safety zone"-the degree to which judges are free from retaliation from the other branches. Those political considerations include: the ideological distance between the court and the legislature and governor, divided control of state government, the difficulty of

Page 409 begins here

constitutional amendment in the state, the length of judicial term, and the method of judicial retention.

Having developed a model to explain state judicial behavior, Langer tests it at both the agenda-setting stage and the decision on the merits. It is in the decision to analyze both stages of decision-making that Langer makes an important contribution to the study of courts. One of the shortcomings of studies of judicial decision-making, at every level, is that they do not account for the agenda-setting stage, instead focusing solely on the decision on the merits. Langer provides a sound justification for including the agenda-setting stage, noting that without an understanding of the behavior of judges during the docketing process, we might very well miss out on important strategic behavior had we only examined the court's decision on the merits. As she suggests, courts could avoid potentially contentious issues, simply by refusing to docket the case.

The results of the analysis, at both the agenda-setting and merit stages, suggest that, particularly for more salient issues, the ideology of the justices, vis-à-vis the other branches, the institutional structure, and political context are important factors in explaining the decision to docket a case and then vote to invalidate a statute. However, as the issues become less salient, the influence of strategic considerations lessens because justices see the opportunity to decide cases in line with
their own policy preferences with a diminished likelihood of reprisal. In sum, the results imply that, particularly in salient areas of the law, where the potential for conflict between courts and the legislature and governor exist, judges are more likely to subvert their policy preferences to avoid reversal.

Even with my enthusiasm for the work conducted by Langer, I have two areas of concern with the book. The first has to do with the construction of the separation of powers game as conceptualized by the author. Langer adopts a model that is similar to those constructed to explain the behavior of the U. S. Supreme Court-including the legislature and the governor of the state as the other primary actors with the ability to influence the ultimate outcome of policy. However, unlike the federal level, justices on state supreme courts, are not ultimately the final arbiters of decisions that come before them, even if they do claim that it is an issue involving independent state grounds. The Supreme Court can potentially review and reverse the decision of the state court, and though the prospects of a case
being appealed and overturned by the Court are understandably small, that potential does still exist. The absence of the Supreme Court as a player in model does detract from the analysis, and future work should incorporate the Court. In addition, Langer treats the legislature and governor as a unitary actor, which may be appropriate in some states where institutional constraints limit the ability of the one actor to operate alone, but it fails to capture the full range of constraints on the choices of state supreme court justices.

Also, the concept of saliency is difficult to define, particularly when dealing with fifty separate policy-making environments. As a result, I would like to have seen greater attention paid to explaining the choice of issue areas by the author. With little perspective on these areas of law, and a background as to why one area is more salient than another, it is difficult to accept that the categorization of these issues holds across all states.

Page 410 begins here

I commend this work to those interested in the study of state supreme courts and judicial decision-making generally. With the increasing importance of state supreme courts, Langer's work will help us to better understand the motivations and constraints on judges at the state level. There is a need for more work on state courts and this book fits in well with what we do know about state courts, and will hopefully help to continue the trend of more interest in these institutions. Langer also makes a significant contribution to the field by explicitly modeling the agenda-setting stage. Analyzing both the docketing stage and the decision on the merits is critical to a clearer picture of the behavior of state supreme court justices. Despite some of my concerns about the construction of the analysis, this is a solid book that should be of interest to many scholars of the courts.

***************************************************************************

Copyright 2002 by the author, Scott Comparato.