Vol. 13 No. 9 (September 2003)
OF TIME AND JUDICIAL BEHAVIOR: UNITED STATES SUPREME
COURT AGENDA-SETTING AND DECISION-MAKING 1888-1997 by Drew Noble Lanier.
Cranbury, New Jersey: Associated University Presses,
2002. 276 pp. Hardcover. $49.50. ISBN: 1-57591-067-5.
Reviewed by Robert M. Howard, Department of Political Science,
Georgia State University. Email: polrhh@langate.gsu.edu.
Drew Lanier offers an analysis of United States Supreme
Court decision-making that goes beyond the scope of previous scholarship
focusing on decision-making from the era of Franklin Roosevelt onwards.
Using a database developed with other scholars at the University of North
Texas, Lanier attempts to build on prior studies by extending attitudinal
and strategic research on judicial decision-making back to 1888. In general,
the book is a worthwhile read for anyone interested judicial politics; however,
the major contribution is more to supplement and confirm existing information
than to offer any major theoretical advance or significant new insight into
these areas. There is little in the book that provokes a new or different
view of the Court’s work and the decision making process.
The book follows an organized, logical progression and
is divided into seven chapters. After the “Introduction,” most
of the chapters provide systematic descriptive and historical information
about the justices, docket, caseload and agenda of the United States Supreme
Court. For example, in Chapter 2, Lanier provides an overview of what he
calls the “Historical Setting of the United States Supreme Court,
1988-1946. The chapter includes biographical sketches of each justice on
the Court, in addition to a synopsis of economic and civil liberties decisions,
during the tenure of each Chief Justice. While the chapter provides a useful
summary of the time period, there is little that is new in this section
for scholars. Most of this will either be familiar to readers, or can be
learned from already existing works.
Chapter 3 details the data collection process, including
the coding scheme and data reliability and also begins the systematic analysis
of the longitudinal trends in the Court’s agenda. Through a series
of tables and charts, the author provides evidence of both the long-term
declining caseload, and the change over time in the Court’s agenda
from a mix of mostly economic-oriented cases to one in which Civil Liberties
and Civil Rights controversies became increasingly important. One informative
chart illustrates the growth of the Civil Liberties and Civil Rights agenda
from about 5% of the Court’s decisions from the late 1880s to more
than 60% by the 1960s, and remaining at around 50% through the 1990s. The
tables and charts in this chapter, and those in Chapters 4 and 5, provide
useful summaries of information, although the tables are difficult to follow
because they proceed from 1888 to 1997, and often contain 2000 entries running
several pages in length. Most of the charts provide an easier to follow
synopsis of the data.
Chapter 4, although again mostly descriptive, supplements
modern analyses of consensus and dissent by examining this decisional phenomenon
back to 1888. The first chart (p.97) shows a significant decline in the number of unanimous opinions,
while subsequent charts document the increase in concurring and dissenting
votes and concurring and dissenting opinions. The increase appears to predate
the elevation of Stone to Chief Justice with the timelines showing the increased
dissensus began in the 1930s.
Chapter 5 begins the analysis of decision-making, and the
author assesses the ideological tilt of the Court’s decisions across
time, following the guidelines of the Spaeth database for ideological codings.
While acknowledging a general increase in liberal civil rights and civil
liberties decisions, the author shows that the ideological balance in economic-related
outcomes has remained relatively stable over time, and that the early courts
were more liberal in this area than one would have supposed during the LOCHNER
era.
Chapter 6 is the heart of the book. It attempts to place
decision-making within a theoretical framework and historical environment,
and uses time series analysis to identify causal factors of decisions. The
author uses rational choice as his theoretical framework, positing that
the Court will have preferences, although movement from preferred positions
should be expected because of external and internal constraints. The author then develops three error-correction models—one
for economic liberalism, a second for civil liberties and civil rights,
and a third for judicial power. While there are some differences in the
models, all include measures of ideology, personal attributes (e.g., judicial
experience and agricultural origins), and outside events (e.g., the World
Wars, the Court packing plan, and the Judiciary Act of 1925).
While the model results offer some interesting insight,
the major weakness in the analysis is that it does not test any sort of
rational choice framework. In the end, we simply do not know whether justices
voted sincerely across time, or whether true preferences were conditioned
by various institutional and environmental constraints. First the measures
of liberalism are obviously inadequate. This is not a criticism per se,
because it is very difficult to derive an adequate measure of ideology that
would be consistent across time. However, without an adequate gauge, it
is difficult to assess the claims of personal attributes and outside interference.
The difficulty of using party affiliation or an ordered measure of presidential
preference across 100 years is that issues and behaviors have changed significantly.
For example, as the ratio of Democrats on the Court rises, the proportion
of liberal civil rights and civil liberties decisions decreases. Clearly,
Democratic Party priorities and ideology were very different in 1890 than
in 1940, and different again in 1990. Without some encompassing ideological
measures, we cannot adequately assess the strength of the personal attributes
and other indicators in the model.
Second, merely showing that an outside event leads to a
statistically significant increase or decrease in the percentage of liberal
decisions, and that they are coterminous with presidential intentions and
the political party composition of the court, does not demonstrate that
the event constrains the justice from deciding cases according to their
sincere preferences. The attitudinal model uses case facts as stimuli to
ideological decisions. The facts trigger attitudes, and in attitudinal models
many case facts are statistically significant. In the author’s models,
we do not know whether identified events trigger an ideological response,
and hence sincere voting, as opposed to an ideological vote constrained
by the events.
Third, the author presents no convincing evidence that
justices vote strategically. To act strategically presupposes that the court
rationally restrains policy preferences to obtain the most preferred outcome
available. The model results, however, do not indicate this. We do not know
whether voting is sincere or strategic, because the evidence presented does
not allow us to measure original preference points as compared to voting
outcomes, and there is no quantitative or qualitative evidence as to the
Court’s preferred policies. Thus, while we learn the overall liberal
or conservative voting trends of the Court, we still have no evidence of
whether these other factors cause the Court to move from its sincere voting
preferences.
Despite these shortcomings, the systematic evidence and the compilation of information make the book a worthwhile read and a welcome addition to the judicial politics library. The evidence of long-term decision trends and the thought provoking models do offer some new insight on the external forces that shape the Court’s agenda and decisions.
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Copyright 2003 by the author, Robert M. Howard.