Vol. 4 No. 3 (March, 1994) pp. 44-46

COURTS AND PUBLIC POLICY by Christopher E. Smith. Chicago: Nelson-Hall, 1993. ix, 151 pp.

Reviewed by David S. Mann, College of Charleston

Whether courts are legitimate makers of public policy is a debate as old as Federalist #78. Smith's text largely provides case studies of judicial policy-making. Periodically, Smith provides arguments for the larger debate. In some sense this book is more brief but otherwise much like Cooper's HARD JUDICIAL CHOICES and Horowitz' THE COURTS AND SOCIAL POLICY, both of which Smith cites. Smith breaks no new ground, which leads me to believe that the target population for this work is as a text or supplement in a judicial process, judicial behavior, or law and politics type of course. Readers might recall that Cooper (1988) addressed housing, prisons, education, mental health, and police conflict as areas where judges made policy; Cooper's was a book of case studies. Horowitz (1977) wrote about housing, school resource allocation, juvenile courts, and searches and seizures; his, too, was a book of case studies. In the present text, Smith addresses school desegregation after Brown, education policymaking in state courts, prisons, abortion, and tort litigation.

Prior to discussing those substantive issues, Smith refreshes the collective memory about some basic topics. In Chapter One, he summarizes many chapters of a Carp and Stidham (1993) type of book on litigants, lawyers, and judges. In the section on judges in Chapter One, Smith focuses on the "behavioral" element of judicial decisionmaking, which is a convenient summary for the undergraduate student. In that section, however, Smith ignores the "traditional theory" of judicial decisionmaking, i.e., that judges base their decisions not behaviorally but by legal reasoning/precedent. One recent work which handled that particular discussion much better than Smith was the Epstein/Kobylka tome THE SUPREME COURT AND LEGAL CHANGE. Smith pays limited lip service to the traditional theory of legal decisionmaking at the top of page 39, as follows:

"Social science research on judicial decision making has shown that judicial decisions are shaped by the same kinds of personal and political influences that affect decisions in other branches of government. Judges' decisions are not dictated by 'law.' Judges use legal precedents and theories in their written opinions to justify the decisions they make, but their attitudes, values, political ideologies, and policy preferences exert significant influence over their decisions."

Later, Smith discusses Levi's legal reasoning method (1948) when addressing the topic of tort law in Chapter Eight. He could have done a better job integrating the two schools of thought much the way Epstein/Kobylka handled the topic. Having read their book first, I was disappointed in Smith's presentation of that alternative explanatory model of how judges decide cases.

Thus, in Chapters Two and Three Smith summarizes much (but not all of) the court-as-policymaker debate. He raises the issue of whether courts are legitimate makers of public policy. He also discusses whether courts have capacity to make policy. In addition, Smith summarizes the presentation of Johnson and Canon (1984) regarding the implementation of judicial policy.

With respect to the substantive policy chapters, there can be much or little to discuss, depending on one's point of view. I will take some middle ground. Chapter Four discusses school desegregation. There is much conventional wisdom about school desegregation and Smith runs that gauntlet: the NAACP as interest group litigator, case summaries, a rendition of the critique of Graglia (there is no mention of Wilkinson's book FROM BROWN TO BAKKE but Lawrence Tribe is footnoted), and reflections of how well or poorly federal judges performed while implementing Brown. The following excerpt is indicative:

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"After the abolition of slavery in the mid-nineteenth century, the United States faced the consequences of its legality of slavery. The prejudicial attitudes and discriminatory actions directed by the white majority toward African-Americans produced, among other things, discrimination in employment and housing, poverty, police brutality, and unequal access to public services. The harsh victimization of African-Americans clashed with the lofty ideals of 'liberty' and 'equal protection' that are trumpeted in the words of the U.S. Constitution."

Nicely written.

Smith concludes about the power of judges to make school desegregation policy as follows:

"The failure of desegregation in large cities does not indicate that judicial policy-making in education will inevitably fail. It merely shows that, like other policy- makers, the breadth of authority needed by judges for implementing effective policies can be limited by developments in the political system."

Smith summarizes school desegregation policy making by playing "follow the leader." The question is, who is the leader? NAACP? Federal judges who were in place to implement Brown? He suggests the judiciary didn't really lead the social change following Brown, but rather served symbolic notice, which assisted the civil rights movement "that pressured the executive and legislative branches into finally enacting antidiscrimination statutes" (p. 76). A general complaint I have is that Smith doesn't name a lot of cases he summarizes. In Chapter Four he relegates to footnote status many cases we all know by name; if this is a text for students, this is an error. He should name the cases. In Chapter Five, he similarly footnotes the 1990 U.S. Supreme Court case of MISSOURI V. JENKINS; though he addresses that case for a paragraph, he never mentions the case name.

Chapter Five discusses education policymaking in state courts. He discusses SAN ANTONIO V. RODRIQUEZ, giving it the extended treatment the case deserves, and as in Chapter Four he assigns a different role to the Nixon appointees compared with previous U.S. Supreme Court majorities viz. policymaking. Smith discusses some education finance cases such as SERRANO V. PRIEST and the continuing Texas and Kentucky litigation. He omits NORTHSHORE V. KINNEAR (Washington), which had the opposite consequential result from RODRIGUEZ but, alas, was a state supreme court outcome. Smith pays no real attention comparatively, however, to the reasons why interest groups played no leading role in education finance cases as they did with school desegregation. Nor is there any link to desegregation. Query: is there literature which links school desegregation policy changes to public attitudes toward funding public education in the 1970s-1980s? In other words, did state legislatures place less emphasis on funding schools because they were desegregated by law? That is the kind of intellectual question about which I would be eager to read but which is lacking.

Chapter Six, on prison reform litigation, requires some comment. Smith states on page 96: "Supporters and opponents of courts' role in shaping correctional policies can generally agree that sometimes (italics) it is necessary for judges to intervene into the affairs of prisoners." The question is when and how much. But he also notes that corrections professionals have reform goals which may overlap prisoners' complaints. Smith suggests that judges can serve as if they were mediators so that the jail can "meet constitutional standards" (101). That this is different judicial behavior compared with the other chapter topics could have been highlighted more clearly to show the diverse ways in which judges handle a variety of policy dilemmas.

Chapter Seven on abortion is conventional wisdom recited reasonably well but not with the

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detail, nor would one expect it under this book's format, of Epstein/Kobylka. So much has been written on this particular topic that to cover it well in a short space is impossible, but Smith provides a noble effort.

Chapter eight on tort litigation had promise and started out to be a very interesting discussion of the evolution of some basic tort rules such as manufacturers' liability. There emerge some problems with the topic, however, when Smith addresses jury verdicts for damages, which itself doesn't fit the basic theme of judicial policy-making (i.e. judges' policy-making). The chapter degenerates into a dialogue about tort reform for several pages. Smith interjects one small section on PACIFIC MUTUAL V. HASLIP (1991), where even with the Reagan-Bush court majority, the High Court affirmed the lower court's awards. Largely, this is not a chapter on how judges make policy. While tort reform is an interesting topic, it doesn't really fit the theme.

Chapter Nine summarizes the general patterns and provides one last forum to address briefly the judiciary qua policy maker debate. Smith decides that courts "may very well be lesser spokes in the larger wheel of social forces" (p. 149) that change society. This book, at minimum, summarizes research which supports that point.

REFERENCES

Carp, Robert A., and Ronald Stidham. JUDICIAL PROCESS IN AMERICA. Second Edition. Washington: Congressional Quarterly Press, 1993.

Cooper, Phillip J. HARD JUDICIAL CHOICES. New York: Oxford University Press, 1988.

Epstein, Lee, and Joseph F. Kobylka. THE SUPREME COURT AND LEGAL CHANGE. Chapel Hill: University of North Carolina Press, 1992.

Horowitz, Donald L. THE COURTS AND SOCIAL POLICY. Washington: Brookings Institution 1977.

Johnson, Charles A., and Bradley C. Canon. JUDICIAL POLICIES: IMPLEMENTATION AND IMPACT. Washington: Congressional Quarterly Press, 1984.

Levi, Edward H. AN INTRODUCTION TO LEGAL REASONING. Chicago: University of Chicago Press, 1948.

Wilkinson, J. Harvie, III. FROM BROWN TO BAKKE. New York: Oxford University Press, 1979.