COURTS AND THE POLITICAL PROCESS: JACK W. PELTASON'S CONTRIBUTIONS TO POLITICAL SCIENCE by Austin Ranney (Editor). Berkeley, CA: Institute of Governmental Studies Press, 1996. 139 pp. $12.95.
Reviewed by Daniel R. Pinello, Department of Government, John Jay College
of Criminal Justice, City University of New York.
Jack W. Peltason isn't a household name to recently trained political scientists. After a thirteen-year stint in the professoriate, Peltason became a college dean in 1960 and stayed in administration until retirement in 1995 as President of the University of California. His first major analytic contribution, FEDERAL COURTS IN THE POLITICAL PROCESS, was published in 1955; FIFTY-EIGHT LONELY MEN: SOUTHERN FEDERAL JUDGES AND SCHOOL DESEGREGATION, his second (and final) significant research, appeared in 1961. Thus, for graduate students in the 1970s and after, Peltason wasn't on the cutting edge.
Well into the '80s, however, political science teachers recognized the name. His GOVERNMENT BY THE PEOPLE, coauthored with James MacGregor Burns, dominated introductory-American-politics texts for at least a generation starting in the 1950s. Similarly, UNDERSTANDING THE CONSTITUTION, written with Edward S. Corwin (Peltason's mentor at Princeton), was a constitutional-law mainstay.
Although acknowledging long and important administrative service, COURTS AND THE POLITICAL PROCESS is a Festschrift to Peltason the scholar. A stellar roster of contributors (including two past presidents of the American Political Science Association and one of the Midwest Political Science Association) refurbishes the luster of Peltason's legacy to law and politics. The luminaries also expose the subfield's underbelly.
Austin Ranney traces Peltason's inspiration to Arthur Bentley. Focusing on the actual behavior of judges and not a "slot-machine" view of legal process, FEDERAL COURTS IN THE POLITICAL PROCESS admonished political scientists to study judges and courts integrated in a larger political system accommodating diverse interests. Examining court decisions, Peltason cautioned, only initiates analysis. Investigating interest activity after courts render opinions is equally momentous. FIFTY-EIGHT LONELY MEN illustrated Peltason's empiricism through exploration of segregationists' strategies for frustrating BROWN V. BOARD OF EDUCATION (347 U.S. 483, 1954) in the lower courts.
In a fascinating essay ripe for law-school courses, Robert Kagan draws on Peltason's vision of courts blended in pluralist politics to expound a model of "adversarial legalism" -- privately initiated lawsuits and formal legal procedures implementing ambitious public policies in the weak, structurally fragmented American state. Lacking European-style bureaucracy to secure policy objectives, Democrats and Republicans in Congress, abetted by law professors and a rights-dominated legal culture, stimulate interest-group litigation to accomplish partisan and ideological goals.
Malcolm Feeley, employing Peltason's insight that court impact sits within a broad context of interest-group activity and political process, explains the explosion of prisons conditions litigation in the 1970s and '80s. Judges advanced established rehabilitation objectives of national prison officials and reformers to professionalize and strengthen correctional institutions at all levels.
In the longest article, Samuel and Daniel Krislov delineate political scientists' departures from constitutional law after World War II. C. Herman Pritchett pioneered a judicial behavior approach, followed by John Schmidhauser, Glendon Schubert, Harold Spaeth, and Sidney Ulmer. By comparison, Peltason founded a judicial-process school, which the Krislovs claim "has been widely even wildly successful.... In numbers and dominance 'judicial process' has more practitioners than 'constitutional law' and 'judicial behavior' combined" (p. 72). The Krislovs' real target, though, is debunking Bentley for underestimating the importance of legal and political precepts while underscoring interest and process. Utilizing an elaborate analysis of amicus briefs in separation-of-powers cases, the father-and-son team contends Mancur Olson, E. E. Schattschneider, and Joseph Schumpeter tap the elemental mix driving political and judicial action better than Bentley. By extension, discounting legal doctrine's power also compromised Peltason's judgment.
In a wonderful paper appropriate for graduate courses, Martin Shapiro chronicles the ineluctable tension between normative legal theory and empirical judicial process. Peltason was the first to bridge the conceptual chasm between "the law" and politics, calling upon judges to make policy in obedience to pluralist theory. In addition, Peltason advocated comprehensive consideration of all tribunals, not just the Supreme Court. Shapiro extends this egalitarian impulse by identifying legal practitioners as the essential next topic to elevate law-and-politics research.
Lucius Barker, Peltason's first Ph.D. (at the University of Illinois), pays personal homage and relates accolades from the honoree's second Illinois Ph.D., Robert Salisbury, and sundry Peltason "grandstudents" (Barker's Ph.D.s at Washington University). Peltason convincingly demonstrated "the indispensable need for students of courts and law to have a thorough, not superficial, knowledge and understanding of the nature and operation of American politics generally" (p. 131).
The orthodox plea for political scientists to recognize the interdependence of, and harmonize, "the empirical and normative" (borrowing Shapiro's characterization) unites COURTS AND THE POLITICAL PROCESS. Unswerving fidelity to either obstructs thorough understanding.
In a remarkable paragraph, the Krislovs diagnose the subfield and find it craves "visionary intellectual statesmanship" (p. 73). They observe, "What we think most scholars consider the most significant single contribution in the field, Martin Shapiro's COURTS is, like much of his work, Einsteinian in the sense that it reflects his own typically individualistic agenda and one that only in the broadest sense has directed the field of study. Few can emulate work whose main methodology is vast erudition and bold thinking" (p. 72). But lacking visionary leaders isn't the same as lacking vision. Ultimately, ideas count, not their source. The book's contributors track a scholarly heritage beginning with Bentley and the Legal Realists and reveal scant revolutionary wisdom since about how courts and judges function. With the advent of econometric methods and the computer age, change came in the tools, not the product, of analysis. Current recycling is the controversy on whether and how judges act "strategically" -- a notion harking back at least to Murphy (1964). If after half a century the subfield truly is bereft of penetrating insights about courts and judges, then maybe it's time to seize more scrutable wares or simply close shop. Otherwise, reinvented wheels masquerade as high art.
A symptom of the problem is cranky intolerance of competing analytic approaches. Nearly thirty years ago, Pritchett surveyed the development of judicial research, devoting roughly equivalent space to the process and behavior schools, and noted, "Under the combined impact of the judicial process and judicial behavior approaches, the field of public law has been given for the first time a distinctively political orientation and has been provided with a vocabulary which makes discourse possible with the more methodologically sophisticated sectors of the political science profession. As Schubert has said, 'The long period during which public law was an exotic bayou, cut off from the mainstream of theoretical and methodological advances in political science, is just about over'" (Pritchett 1969:41). The founder of judicial behaviorism exhibited more charity for scholarly diversity than is sparingly displayed in the current volume. Pritchett realized rival voices enrich, not debase, knowledge. (Witness, for example, the engrossing debate on stare decisis in Volume 40, Number 4, of the AMERICAN JOURNAL OF POLITICAL SCIENCE). Moreover, Peltason's achievement isn't so fragile that assessments by prominent judicial behavior enthusiasts like Spaeth or Jeffrey Segal, or even by normative theorists, would have tarnished the book's celebration.
Murphy quotes FEDERAL COURTS IN THE POLITICAL PROCESS in the first paragraph
of ELEMENTS OF JUDICIAL STRATEGY. Merely a handful of public law milestones
from the '50s and '60s remains in print, with only FIFTY-EIGHT LONELY MEN,
McCloskey (1960), and Murphy coming to mind -- heady company indeed. Perhaps
peers and the market best appraise Peltason's legacy.
Burns, James MacGregor, and Jack W. Peltason. 1952. GOVERNMENT BY THE PEOPLE: THE DYNAMICS OF AMERICAN NATIONAL GOVERNMENT. New York: Prentice-Hall.
Corwin, Edward S., and Jack W. Peltason. 1949. UNDERSTANDING THE CONSTITUTION. New York: W. Sloane Associates.
McCloskey, Robert G. 1960. THE AMERICAN SUPREME COURT. Chicago: University of Chicago Press.
Murphy, Walter F. 1964. ELEMENTS OF JUDICIAL STRATEGY. Chicago: University of Chicago Press.
Peltason, Jack W. 1955. FEDERAL COURTS IN THE POLITICAL PROCESS. New York: Random House.
Peltason, Jack W. 1961. FIFTY-EIGHT LONELY MEN: SOUTHERN FEDERAL JUDGES AND SCHOOL DESEGREGA-TION. New York: Harcourt, Brace and World.
Pritchett, C. Herman. 1969. "The Development of Judicial Research," in Joel B. Grossman and Joseph Tanenhaus (eds.), FRONTIERS OF JUDICIAL RESEARCH. New York: John Wiley and Sons.
Shapiro, Martin. 1981. COURTS: A COMPARATIVE AND POLITICAL ANALYSIS. Chicago: University of Chicago Press.