Vol. 6, No. 2 (February, 1996) pp. 23-26
BATTLES ON THE BENCH: CONFLICT INSIDE THE SUPREME COURT by
Phillip J. Cooper. Lawrence: University Press of Kansas, 1995.
224pp.
Reviewed by Lee Epstein, Washington University in St. Louis
In recent correspondence, Charles Cameron -- a student of the
legislative process at Columbia University -- explained to me why
scholars working his field find Richard Fenno's work so
attractive:
Fenno always has a model in mind when he tells his stories, and
he has wonderful, on-point data for his models. Reading his books
makes a theorist's fingers itch to write down models, either to
formalize his implicit perspective or to explain the fascinating
stylized facts' his implicit models allow him to see as important
and report. There is a repeated "Ah-ha" effect that has
an overwhelming impact on the reader.
I think political scientists who study law and courts would make
the same kinds of claims about Walter F. Murphy's ELEMENTS OF
JUDICIAL STRATEGY and David J. Danelski's a SUPREME COURT JUSTICE
IS APPOINTED. Both books, while chock-full of stylized facts,
have a model they seek to develop; and both have that
"finger-itching" quality Cameron finds so appealing in
Fenno's work.
Judged by these criteria -- criteria reasonable to apply to any
scholarly book largely composed of stories -- Cooper's BATTLES ON
THE BENCH comes up short. While the volume makes my fingers
"itch," it lacks a point. Cooper wanders aimlessly from
one story to the next, without offering explanations, morals, or
even punch lines -- much less having a model in mind. Worse
still, many of his stories are only half stories, some of his
claims either lack any sort of empirical basis or are
contradicted by existing data, and virtually nothing he writes is
informed by modern-day theories of the judicial process.
The trouble starts in the first few pages of the book in which
Cooper lays out his key concerns. Primarily, he writes, BATTLES
is "about conflict in the United States Supreme Court"
(ix). Of course, "conflict" is an interesting subject
but some of the reasons he offers for studying it are too
simplistic. The first begins with Cooper noting that "The
justices continue the ritual of the handshake to this day, but
they have also been known, symbolically at least, to shake fists
as well....Yet it is hard to think about conflict in the Supreme
Court. We have no difficulty discussing clashes between the Court
and other levels or branches of government, but within the Court
itself? Many Americans would consider the notion tantamount to
contemplating fist fights in the College of Cardinals" (p.
1). I had to read these sentences several times. I can't imagine
in this day and age -- when the media regularly report on
tensions within the Court, when dissents have become an
institutionalized feature of Supreme Court decision making, when
confirmation proceedings typically focus on candidates'
ideological predilections, and when THE BRETHREN (though now
quite dated) was a bestseller and continues to be used in
classrooms -- that anyone would make this claim or that anyone
would buy it.
Page 24 follows:
Surely Americans (at least the few who think about the Court)
don't believe it is the monastery that Felix Frankfurter once so
hypocritically deemed it.
A second justification Cooper offers for the study is a void in
the literature: "Given the importance of conflict in the
history of the Court, it is surprising that so little has been
written about the subject and what has been written centers
largely on voting alignments in particular cases with a bias by
commentators toward reducing fragmentation in opinions" (p.
3). This was another sentence I had to read twice, for it is so
stunningly wrong. As virtually all political scientists who study
the Court acknowledge, the field of judicial politics owes its
origins to C. Herman Pritchett's (1941, 1948) observation that
conflict exists on the Court. Prior to Pritchett's writing, many
political scientists would have bought Cooper's claim that
justices fight about as much as do members of the College of
Cardinals. But, as Pritchett so insightfully asked, if this was
so, if justices made decisions on the basis of a well-established
"canon" of principles, then why do various justices in
interpreting the same legal provisions consistently reach
different conclusions on important issues of the day? By merely
raising this question, Pritchett propelled generations of
scholars to study not only Supreme Court votes but to explain
trends in conflict over time as well.
So why Cooper makes the claims he does is puzzling. The
justifications he offers also bring into question the audience
for the book. Most scholars, I believe, would find Chapter 1 just
as retrograde as I did and, for that reason, would think twice
before assigning it to students to read. I can imagine many
readers signing off by page 8. Of course, as a reviewer, I was
forced to plunge forward and, in some sense, I'm glad I did.
This is not because the book becomes any more sophisticated or
analytical in the ensuing chapters. Indeed, the material forming
the heart of the book -- Chapter 2 (Why Do They Fight?), Chapter
3 (How Do They Fight?: The Professional Fights), and Chapter 4
(How Do They Fight: Internal and Personal Battles) -- only serves
to shore up my claim that, unlike Fenno, Murphy, or Danelski,
Cooper writes with no model or point in mind. Take Chapter 3 in
which Cooper provides examples of the ways internal Court
conflicts manifest themselves professionally: dissenting opinions
and dissents from denials of certiorari, "named attacks in
footnotes," presentation of dissents in open court, and
clashes over court operations, to name just a few. For each of
these, Cooper relies on vignettes that he put together from
public case records and the papers of various justices. So we
read that Brennan and Marshall "issued increasingly harsh
dissents from denials of stays in the death penalty
cases...principally because of their fundamental opposition to
the death penalty itself, but also because they came to feel that
there was a rush to judgment in which important issues and cases
were simply ignored;" and that "Chief Justice Warren
was generally opposed to dissents from denials, but neither he
nor any of his successors have been able to put a stop to the
practice or even to curb its expansion... [because] they are a
device by which justices can vent their anger at the
unwillingness of the Court to undertake critical decisions that
are in the dissenters' view essential" (pp. 65-66).
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This is all well and good, but what do we really take away from
these observations? Why have dissents from denials increased (if,
in fact, they have; the data Cooper offers come from O'Brien
[1996, 241-242], which only provides numerical figures for the
1980-81 and 1987-88 terms)? Why are such increases important? I
could raise the same sorts of questions about virtually all of
Cooper's manifestations of conflict for, within the substantive
chapters, he provides almost no answers. And he doesn't even do
so in Chapter 5, though surely with the propitious-sounding title
of "What Difference Does It Make?" Cooper fully builds
up expectations; finally, I'd get some answers to the very
question that had been in the forefront of my mind for the past
122 pages. But such was not to be. Rather than focus on the kinds
of answers scholars would find interesting and important (such
as, "Conflict has implications for law emanating from the
Supreme Court because___________"), Cooper invokes the word
"hurt" (and various synonyms) a lot: "Words do
HURT and when they come from peers and colleagues with whom one
must work every day and on whom one must depend for support, they
hurt even more" [emphasis added] (p. 123); Thurgood
Marshall, owing to perceived disrespect or attempts at
manipulation, felt "what might be called unarticulated
injuries, slights that [Marshall] never mentioned but that
nonetheless HURT and conditioned his relationships with
others" [empasis added] (p. 137).
Not all of the material in this chapter is so trite; indeed,
there are a few portions in which Cooper verges on saying
something significant but, unfortunately, stops short. Consider a
section titled "External Views of the Court Can Be
Affected," in which I thought Cooper might invoke data in
Eskridge's seminal law review article, showing that Congress is
more likely to override fragmented Court decisions than unanimous
ones. This would have been a clever way for Cooper to have
illustrated the consequences of conflict but, instead, he largely
describes how the press chronicles the Court: "The battles
of the 1970s over abortion and affirmative action brought a new
visibility [to the Court]" (p. 149). Not only does this
statement undermine the book's initial contention that Americans
view justices as Cardinals, but it and the surrounding material
also underscore BATTLES' inability to engage in serious and
meaningful analysis.
Why, then, am I glad I read this book? The answer takes me back
to my starting point: Despite the fact that Cooper has no
"model in mind when he tells his stories," his book
made my "fingers itch to write down models, either to
formalize his implicit perspective or to explain the fascinating
stylized facts'." Let me provide but one illustration. In
trying to show why justices fight, Cooper writes that "The
ideological premises that motivated Marshall and Powell were too
deeply held to be reconciled" (p. 15), with their division
over the resolution of BAKKE a case in point. To be sure, as
Cooper notes, Marshall was highly critical of Powell's approach,
going so far as to craft a rather harshly-worded response to
various memoranda Powell and others had circulated prior to
opinion assignment. Cooper reproduces Marshall's memorandum but
he never finishes the story. A review of Brennan's case files
shows that after Powell circulated a draft of his BAKKE opinion,
Marshall wrote back that he would "not join
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any part of the opinion" and that he planned to dissent
"in toto." This led Brennan to conclude that "with
such evident ill-will and sensitivity in the background, it would
be difficult to win Marshall's vote." But, at the end of the
day, Marshall retreated from his adamant position, and joined
part of Powell's judgment.
Why Marshall took this course of action is a fascinating puzzle
-- the solution to which probably lies in his goals, his
perceptions of the goals of his colleagues, institutions, and so
forth. And it is a puzzle just begging for a solution, as are
many others that researchers could extract from this book. So,
for scholars interested in solving puzzles, in writing down
models, I strongly recommend BATTLES; I guarantee that it will
make their "fingers itch." For those who want the
author to do most of the work -- a not altogether unreasonable
expectation -- I believe that the University of Chicago Press
still stocks ELEMENTS OF JUDICIAL STRATEGY.
References
Danelski, David J. 1964. A SUPREME COURT JUSTICE IS APPOINTED.
New York: Random House.
Eskridge, William N. Jr. 1991. "Overriding Supreme Court
Statutory Interpretation Decisions." YALE LAW JOURNAL 101:
331-417.
Murphy, Walter F. 1964. ELEMENTS OF JUDICIAL STRATEGY. University
of Chicago Press.
O'Brien, David M. 1996. STORM CENTER: THE SUPREME COURT IN
AMERICAN POLITICS. New York: W.W. Norton.
Pritchett, C. Herman. 1941. "Divisions of Opinion Among
Justices of the U.S. Supreme Court." AMERICAN POLITICAL
SCIENCE REVIEW 35:890-898.
Pritchett, C. Herman. 1948. THE ROOSEVELT COURT. New York:
Macmillan.
Copyright 1996