Vol. 5 No. 3 (March, 1995) pp. 91-94
SPECIAL ISSUE, JUDICIAL PROCESS TEXTS
Michael W. McCann, Editor
THE JUDICIAL PROCESS: AN INTRODUCTORY ANALYSIS OF THE COURTS OF
THE UNITED STATES, ENGLAND, AND FRANCE by Henry J. Abraham. Sixth
ed. New York: Oxford University Press, 1993. Paper $19.95.
Reviewed by Alec Stone
(University of California, Irvine)
Henry Abraham's THE JUDICIAL PROCESS is one of the few political
science textbooks to achieve true classic status. Now in its
fourth decade and sixth edition, it has never been effectively
challenged on the market. The book's remarkable success must be
partly due to scope, delivering an historically rich,
institutionally centered overview of the judiciary in multiple
contexts. It is also coherently organized -- moving from an
introductory discussion of the nature of law, to judges, courts,
courtroom procedure. and juries to whole legal systems, and
finally to an extended examination of the U.S. Supreme Court and
judicial review. As important, Abraham writes in an engaging
style, avoiding jargon and mixing abstract analysis with hundreds
of flesh and blood examples. Even the notes (and they are
blessedly at the foot of the page) are packed full of facts and
stories, bits of trivia informative, charming, or bizarre. In
short, the book provides a readable, relatively and seemingly)
comprehensive account of the role and function of courts.
THE JUDICIAL PROCESS is also an old fashioned book. No explicit
theoretical or conceptual apparatus structures the enterprise. No
proclaimed normative concern informs the presentation. Instead,
the author seems to presume that readers share a common reverence
for law, robes, and courts, and especially for constitutional
law, Supreme Court justices, and judicial review. For those who
believe that the American legal system and constitutionalism are
in crisis, the book may seem at best out of touch, at worst an
apology. Further, the basic template for this text was cast in
the early 1960s, yet the concerns of many ( most?) public law
political scientists have moved far beyond Abraham's. It is
revealing that the book contains no sustained treatment of
constitutional rights or the evolution of rights politics (though
Abraham is the author of a book on constitutional liberties that
is also in multiple editions), the explosion of public interest
litigation, of administrative law and the regulatory state, or
the interaction between courts, legislatures, and executives in
the making of public policy. Surely the judicial process is today
full of all of these politics, and surely the judicial process
infects other forms of politics.
A truly updated version would also discuss how political
scientists study and understand judicial politics. Abraham
neither describes nor assesses different schools of public law
analysis. Although Abraham deals with various (potential)
influences on the Supreme Court's work, there is no debate
between, say, proponents of attitudinal models and traditional or
new institutional jurisprudential analysis. There is also no
attempt to conceptualize politico-legal culture, or to link
"society" with the judiciary. Courts, for the most
part, seem to reside in their own space, and the judicial process
is what animates that space.
For some teachers, the old fashioned nature of the text may be
part of its attraction.
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One set of criticisms, however, deserves emphasis. Despite the
book's subtitle, this is not a comparative work. At most, foreign
court systems provide Abraham with convenient shadow cases, foils
for elaborating on or differentiating the American case. Chapter
6, entitled "Courts Abroad," is the shortest chapter in
the book (25 pages). The chapter is also by far the most outdated
(the reference notes suggest that the French section has not been
revised since the 1970s). England gets better treatment than
France, probably because the American legal system is rooted in
common law soil. The chapter actually contains, in the section on
French courts, more discussion of American case law than French
case law. That this book included any non-Anglo-Saxon cases at
all may have been progressive in earlier decades, but not today.
Indeed, I believe Abraham's treatment actually hinders our
comparative understanding of the political role of courts in the
world.
Abraham's ultimate focus is on constitutional judicial review,
nearly Ç of the entire text is devoted to the Supreme Court and
review. In 13 pages of chapter 7, the author assesses the status
of foreign review systems, which never measure up to "the
full majesty and range" of American review (p. '70). The
American system is "true," "full," or
"bona fide" review; the Kelsenian model, found in
Europe and Latin America, comes off as a strange creature, but
only because it does not conform to the American model. We need
to recognize that American "judicial review" is only
one, comparatively rare form of "constitutional review"
-- the power of an institution to control the acts of government
for constitutionality. In fact, American review is by far the
stranger creature: Kelsenian review is now installed in Austria,
Belgium, the Czech Republic, the European Union, France, Germany,
Italy, Poland, Portugal, Slovakia. Rumania, nearly all of the
former Russian Republics, Spain, and in many Latin American
polities. In these systems, the ordinary judiciary does not have
the power to control constitutionality, though judges may refer
constitutional questions to specialized, constitutional courts,
which alone possess the power of review. The establishment of
these courts has restructured the work of the judiciary as a
whole (though Abraham does not examine the crucial interactions
between the judiciary and constitutional courts beyond stating
that they are "found outside or astride the ordinary court
structure" (p. 293).
Abraham's discussion of review beyond U.S. borders is riddled
with errors, breezy generalizations, and serious omissions. It is
not true that the French Constitutional Council is still
considered "an adjunct of the President of the
Republic" (p. 292), though one could still have made that
argument until 1975 or so. In fact, the Council functions as a
powerful check on executive dominance. It is not true that
"the practice of judicial review in its ultimate and awesome
U.S. application ... is not likely to be found in nonfederal
states" (p. 288) -- as the list above makes clear -- unless
we are wedded in advance to a restrictive, virtually sui generis
definition of review. It is not true that British courts may not
set aside legislation (p. 288): British judges do so, when
statutes violate what is in effect the constitution of the
European Union, a constitution which includes an embryonic bill
of rights. It is not even the case that the U.S. Supreme Court
does more review
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of national or federal legislation than do other courts.
According to Abraham's figures. the Supreme Court has pronounced
only 140 "declarations of unconstitutionality" in the
1798-1990 period, and only 66 since 1946 (pp. 272-87). In its
first three decades (1959-90), the French Council has pronounced
87 such declarations; the German Court has reviewed over 20% of ~
federal laws adopted since it began functioning (1951), and has
declared over 5% - several hundred -- at least partly
unconstitutional. In brief, constitutional review is flourishing
abroad, but the reader would never know this by reading Abraham's
book. Basic information on, and social science analysis of,
foreign courts and review is readily available. In the past six
years alone, two books on European constitutional law and
politics (Donald P. Kommers on Germany and Alec Stone on France)
have been published and special issues of four scholarly journals
(WEST EUROPEAN POLITICS, POLICY STUDIES JOURNAL, COMPARATIVE
POLITICAL STUDIES, and the INTERNATIONAL POLITICAL SCIENCE
REVIEW) devoted to comparative judicial politics and review have
appeared.
These criticisms aside, THE JUDICIAL PROCESS remains an old and
useful friend. I assign it in two courses. In my Introduction to
Law course, which employs materials drawn from legal
anthropology, American and European judicial politics, and
international relations and international law. We read parts of
THE JUDICIAL PROCESS as a supplementary text on the American
case. I do not use the comparative sections of the book at all,
for reasons stated. In my writing seminar, Constitutional
Politics, students divide themselves into lawyers, judges, and
political scientists, and try a case as a Supreme Court. The
lawyers submit briefs to the Court; the judges draft decisions;
and the political scientists analyze the entire process as
judicial politics. Abraham's emphasis on the Supreme Court and
judicial review works to great advantage here, informing the
efforts of each group. In chapter 5, the author guides readers
along each stage of the process, from the processing of writs of
review to problems of compliance with the Court's decisions. This
is Abraham at his best and most entertaining. The author regales
students with the pomp of "this most impressive and most
dignified of all governmental bodies" (p. 188) at oral
argument, but also provides snippets of petty bickering between
Justices interrupting counsel. We are taken "behind closed
doors," and given glimpses of the intricacies of the Court's
internal decision-making procedures, the politics of assigning
opinions, and the quest for a stable majority in the face of
concurrence and dissent. Along the way, the impact of clerks, the
solicitor general, amicus briefs, social science data, and even
legal periodicals is weighed. In chapters 7, 8. and 9, Abraham
presents a nuanced case in favor of judicial review, assessing
the immense power of review but also its limitations. For the
purposes of my course, these chapters could not be better. The
text provides an accessible discussion of the Court, its
decisionmaking processes, and of judicial review, pushed at every
stage by beautifully chosen examples drawn from the institution's
entire history. Students not only learn a great deal about what
they will be doing as lawyers or judges, but they enjoy reading
and discussing the text as well. Finally, I strongly urge
students who are going to pursue a law
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and politics concentration within a political science major to
purchase the book for reference purposes. THE JUDICIAL PROCESS is
an extraordinary storehouse of basic information on the American
legal system. thoughtfully organized and clearly written.
Copyright 1995