Vol. 5 No. 3 (March, 1995) pp. 86-90

SPECIAL ISSUE, JUDICIAL PROCESS TEXTS
Michael W. McCann, Editor

CONTEMPLATING COURTS by Lee Epstein (Editor). Washington, D.C.: Congressional Quarterly Press, 1995. 485 pp. $42.95 (cloth). $28.95 (paper).

Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University

CONTEMPLATING COURTS is a new kid on the block, and it's different from the other readers in the neighborhood. It is not a collection of previously published work. It also makes no pretense of being either catholic or comparative in its survey of the law and politics research. Instead this book is a careful selection of mostly original, predominantly empirical essays with an institutional focus on America's courts. Its editor, Lee Epstein, wanted work that "shows off the sophisticated side" of court research by political scientists but "without the unnecessary jargon." Although aimed at the college market, it is very likely that this fine book will win the attention of scholars who want to stay abreast of developments in the judicial politics literature. To keep the book's parts from flying apart, Epstein ties the chapters together with the twinned themes of showing how empirical study unravels interesting puzzles about the strategic behavior of judges, lawyers, organized interests, and how average citizens make decisions in judicial elections and how they learn about Supreme Court opinions.

Epstein arranged the chapters in the book along fairly conventional lines as a glance at the table of contents indicates. After an introduction to the research process, the first section deals with the selection of judges, the role of lawyers, and the influence of organized interests in courts. The middle and largest portion of the book works it way up the hierarchy of courts with three sections devoted to trial courts, appellate courts, and the U.S. Supreme Court. The concluding section addresses the impact of the Court's decisions. Two statistical appendices offer non-technical explanations of the methods used in some chapters of the book. A third appendix provides a valuable guide to archival and statistical information about courts.

One of Epstein's goals was to display the diversity of research on courts done by political scientists and to showcase original work of high quality that would excite readers' curiosity and prompt future research. In large measure, she attained her goals. The book's overall emphasis, however, reflects the persistence of the discipline's upper-court bias and its long-standing fascination with or perhaps preference for federal courts. Only the chapters by Baum, Church, and Mather deal with trial courts. (The chapter by Scheppele is centered on the Anita Hill-Clarence Thomas hearings which Scheppele uses as a springboard to talk about the social construction of credible stories in trial courts.) The other twelve substantive chapters focus either directly or indirectly on the federal appellate courts. CONTEMPLATING COURTS includes no work on federal trial courts, administrative tribunals, or state appellate courts.

Most of the contributions are new or substantially so and appear in print for the first time in this book. The exceptions are the four chapters by Church, Scheppele, Mather, Rosenberg, and one by Segal, Songer, and Cameron, although they have been revised or updated to meet the book's purposes. The inclusion of this previously published work is

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a testimony to their enduring quality, fresh approach, or controversial character. For example, Church's research using innovative "case scenarios" to tap local legal cultures first appeared in article form ten years ago; Mather's piece rests on her chapter in Gates and Johnson's THE AMERICAN COURTS which has become a standard reference work on the state of the field; and Rosenberg's chapter draws from his book, THE HOLLOW HOPE. One measure of the overall quality of the original contributions is the honorable mention McGuire received in the competition for the C. Herman Pritchett Award for THE SUPREME COURT BAR (his chapter is an extension of the book's argument with new data) and the American Judicature Society Award that Harrington and Ward received for the 1993 paper on which they build their chapter. Another measure is the support several chapters received from the National Science Foundation.

The limited institutional focus of the book's selections while disappointing nevertheless still reveals many aspects of the intersection of politics and courts that political scientists explore and the diverse methods and approaches they use in their empirical work. For example, Baum investigates voters' decisions in a low information judicial election with data from three waves of interviews in a panel study. Franklin and Kosaki look at how media coverage affected knowledge and support for the Supreme Court with a one-shot survey of the public and data on newspaper and television attention to several contemporaneous Court opinions. Bowen collected mail questionnaire data from samples of lawyers in four states to determine how attorney attitudes influence the voluntary implementation of the Court's decision striking down state bans on professional advertising.

Other chapters employ case-related data to understand judicial decision-making, the effectiveness of repeat players before the Supreme Court, the influences that shape appellate litigation trends, and how the Supreme Court's agenda has changed. Segal, Songer, and Cameron test three models of decision making in the U.S. Court of Appeals with individual case-level data in search and seizure cases identified through LEXIS. Spaeth turns to the Supreme Court Database to illustrate the superiority of the attitudinal model to the legal model using the votes of individual justices in affirmative action cases. McGuire also uses this database along with information he collected about attorneys to tease out the impact of experienced Washington litigators on Supreme Court decisions. Harrington and Ward on the other hand employ aggregated time-series data to assess the explanatory power of three models of civil litigation in U.S. Courts of Appeals. Pacelle after coding Supreme Court decisions from 1933 to 1992 into several categories takes these aggregated data to trace trends in the Supreme Court's agenda with an eye toward assessing whether the Rehnquist Court is discarding the preferred-position doctrine.

A third group of chapters relies on archival data, interviews, and court opinions. In order to understand the evolution of interest group involvement in the selection of Supreme Court justices, Caldeira and Wright dug through presidential papers and the records of the Leadership Conference on Civil Rights and supplemented what they found

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with interviews of representatives of organized interests. Kobylka tracked the increasingly complex patterns of Establishment Clause litigation and the emergence of separationist doctrine and subsequent accomodationist challenges through the published opinions of the Court. Epstein and Walker combed the historical record to develop a rational model of the Supreme Court's behavior in two Reconstruction era decisions that they maintain the attitudinal model is inadequate to explain. Mather and Rosenberg similarly rely on various kinds of primary and secondary data for their studies.

The book's strong narrative quality is one of its many surprises. Epstein sets this tone in her introductory chapter when she wonders about whether international crises or tensions might have an impact on Supreme Court decisions. Her essay has a suspenseful quality as she takes the reader by the hand and step-by-step reveals how she would answer this question empirically. Kobylka's intentions are clear from the start. He tells the reader that he will follow the trail of Sherlock Holmes and sift through the list of usual suspects or explanations of Supreme Court decisions using Holmes's process of elimination in order to identify the prime or most probable suspect in solving the mystery of why Establishment Clause doctrine until now has remained relatively unchanged. Another example is Caldeira and Wright's story of how organized interests became involved in the selection of federal judges, a story that builds naturally to a dramatic climax during the Reagan administration and what they argue is the institutionalization of a new regime. Later in the book Spaeth savages the legal model with gusto, sarcasm, and iconoclastic wit. All of this makes for lively reading. The essay format also contributes to the book's readability which should help carry college students over the tougher, inevitably dryer parts where theories (e.g., principal-agent theory) are introduced, models and scaling are explained, concepts operationalized, and statistical results discussed.

Another surprise are the internal conversations and commentary about the state of judicial research that crisscross the book. One example is the conversation between Goldstein and Rosenberg. Goldstein's essay centers on the importance of defining the nature of the American democratic regime and locating the court's role within this regime in order to understand the various kinds of constitutional politics that take place in America. Goldstein reaches the important conclusion that under the American regime, as she sees it, Court-discovered rights that appear to lack a textual foundation in the Constitution are likely to be rejected by citizens. The politics of implementing abortion rights described by Rosenberg offers ample material for thinking about Goldstein's theoretically normative argument. The chief topic of the book's inner dialogue, however, is the attitudinal model. The feeling that courts and politics involve strategic concerns leads many contributors to believe they must situate judges, lawyers, groups, or courts in an institutional or political context if their behavior is to be properly understood. Knowing that liberal judges vote liberally and conservative judges vote conservatively is not enough.

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Harrington and Ward, for instance, show that the disposition decisions of courts of appeals affect civil litigation rates in their particular circuits. Pacelle argues the same general point in his discussion of the Supreme Court's agenda. Judges do not merely respond to the facts of cases; their decisions and policies actively shape the dynamics of litigation and thus the kinds of cases they will hear. In another strand of this conversation, Kobylka points to the importance of legal argument as an influence on Court decisions, as he and Epstein did in THE SUPREME COURT AND LEGAL CHANGE, suggesting that reports of the legal model's demise have been premature. Epstein and Walker directly question the individualistic emphasis of the attitudinal model. They argue that court decisions emerge through games in which the Court's preferences are matched against those of the president, Congress, and congressional committees and weighed according to the justices' perceptions that their decisions will be overturned or the Court's integrity jeopardized. While laying out their argument, Epstein and Walker also scrape some of the mold off the Dahl-Casper debate by adding to this perennial topic a fresh strategic voice.

CONTEMPLATING COURTS adds a stimulating, topical, and informative option to the current menu of undergraduate and graduate readers. It will be challenging and fun for students to read, and hopefully help political science faculty recruit future scholars to the empirical study of politics and courts. Its strength is the very high quality of the work included in it; however, its weakness is its limited selection. This is not a fatal flaw by any means, nor is it a mortal error in editorial judgment. It nonetheless reflects the consequences of an editorial strategy designed to broaden the book's horizon beyond the Supreme Court (an otherwise commendable and justifiable goal) intersecting with a decision rule that restricted the selection of work to political science research which lamentably is a skewed sampling of the world of courts, law, and politics.

The chapter by Scheppele illustrates the problem. While Scheppele makes a provocative argument, her essential point that "truth" is socially constructed through a story-telling and story-matching process has been the object of considerable work by social psychologists using experimental research designs to explain jurors' decisions. A chapter drawn from this genre would have fit nicely into the book since Scheppele's essay rests on a reading of this literature. Political scientists actively engaged in research in courts with a few exceptions (Jonathan Casper comes to mind) do not use experimental methodologies or study juries. Epstein's selection rule, then, drastically shrank the pool of interesting, innovative research in the lower courts where political science more often rubs shoulders with the other social sciences than in the Supreme Court, the discipline's traditional haunt. A related problem is the narrow institutional focus of most political science research on courts, particularly at the lower levels, hides from view the politics of dispute avoidance and resolution that occurs in the shadow of the courts. The fault, it should be emphasized, is not the rule that guided the preparation of this excellent book, but the restricted brief political scientists have taken for themselves in the study of law and politics. The hope is that as future editions of CONTEMPLATING COURTS appear this

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problem will wither away.

References:

John B. Gates and Charles A. Johnson (eds.), 1991. THE AMERICAN COURTS: A CRITICAL ASSESSMENT. Washington: Congressional Quarterly Press.

Kevin T. McGuire, 1993. THE SUPREME COURT BAR: LEGAL ELITES IN THE WASHINGTON COMMUNITY. Charlottesville: University Press of Virginia.

Gerald N. Rosenberg, 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE. Chicago: University of Chicago Press.