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.