Vol. 3, No. 7 (July, 1993)

THE SUPREME COURT AND LEGAL CHANGE by Lee Epstein and Joseph F. Kobylka. Chapel Hill, North Carolina: University of North Carolina Press, 1992. 417 pp.

Reviewed by Susan Sterett, Department of Political Science, University of Denver.

What brings about change in appellate legal doctrine? Epstein and Kobylka take this as their central problem and explore three possible answers through case studies of the death penalty and abortion. Their three partly rival hypotheses are that changes in court personnel, changes in the political environment, and the strategy of groups can account for legal change. They thread the deployment of legal argument throughout their account from these different perspectives, but the hypothesis concerning the strategy of groups bears the primary burden of taking into account the significance of legal argument. The conclusion of the book is unusual for behaviorists to have reached: they argue that legal arguments and doctrine, as framed for the courts by the groups that appear before them, fundamentally shape the results in law. Herein lies the strength of the book as well as the limits of an account of legal doctrine that insists doctrine is deeply distinct from political argument. Epstein and Kobylka argue that they are in part going against the "conventional wisdom that political factors are responsible for doctrinal development and alteration" (p. 310).

Epstein and Kobylka want to distinguish legal argument from the political environment and from ideology. Indeed, in the conclusion they insist that legal argument, the material traded between justices and lawyers, matters more than ideology. At the same time, they claim that for some justices ideology is an overriding factor. Their examples include Justice Brennan and Marshall in the death penalty cases, who were clearly not persuadable on questions of the constitutionality of the death penalty.

Their rich and detailed discussion of the death penalty allows one to question the distinctions they make between legal arguments and ideology. Legal arguments are not simply arguments from precedent, according to Epstein and Kobylka. They include how to interpret precedent as part of a set of beliefs about good policy. Epstein and Kobylka include a sensitive discussion in both areas of what it means to have legal argument matter. Clearly both the death penalty and abortion decisions, like most appellate decisions, contained the potential seeds of their own demise. In some cases that is true because lawyers take it as their job to make ambiguity where perhaps beforehand we would not have seen any. But cases carry more openness than even that implies. FURMAN V. GEORGIA (1972), popularly understood to have abolished the death penalty, actually only struck down how it was usually administered, as Epstein and Kobylka carefully discuss. A plurality in FURMAN held that as it was administered the imposition of the death penalty was rare and random enough to be unconstitutionally arbitrary. As Chief Justice Burger said in his dissent, the opinion seemed to allow the states to write and administer constitutional death penalty laws (pp. 78-80). That left the way open to states to redraft their laws and lawyers to relitigate them. The victory for death penalty abolitionists was hardly clear cut legally, as Epstein and Kobylka argue, which means that its demise is not necessarily dramatic legal change. Rather, at least some appellate legal doctrine can be seen as a case of the courts testing the waters, so that change from a decision could be overdetermined because the initial decision was ambiguous anyway.

Substantial social science evidence was used to address arbitrariness, the deterrent value of the death penalty, and racial discrimination both in that case and subsequently in the efforts to limit it. Immediately subsequent to BROWN V. BOARD, such evidence was controversial because many considered it not to be legal argument. By the 1970s when the death penalty was being litigated, it was considered legal argument and Epstein and Kobylka accept it as that. Certainly legal argument matters. But Epstein and Kobylka accept the common distinction between legal argument and

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politics, asking which one matters most. Their answer is different from that of most behaviorists: legal argument, not just politics, matters. But how is one to tell the difference between the two? Epstein and Kobylka argue briefly that the law did not matter to Brennan and Marshall because they remained convinced throughout the litigation. By why can't it be that they were convinced on legal grounds? Particularly when legal grounds include evidence of racial discrimination and a commitment to "evolving standards of decency," a key legal argument in the area as an interpretation of the due process clauses of the fifth and fourteenth amendments. That is a legal argument because appellate court judges use it, just as social science evidence is now routinely material for legal argument. However, none of that material is clearly distinguishable from the political environment or ideas about politics. That Brennan and Marshall remained convinced about the death penalty is not evidence against the argument that legal doctrine matters in persuasion.

Epstein and Kobylka take a similar tack in abortion. ROE was not a clear declaration of a right for all women to choose to have an abortion in all circumstances. That has become crystal clear subsequent to ROE, but the limits in the case are clearly there. Blackmun argued for the importance of the doctor to what he saw as a medical decision, not a decision of absolute right. The division of pregnancy and interests into trimesters during which interests were balanced differently also meant that ROE did not represent a declaration of right. While Epstein and Kobylka are right to acknowledge the retreat from ROE, they again overstate it. They argue that O'Connor was persuadable had the arguments been better framed, for she acknowledged a right to an abortion. She did, but she was well within the ROE framework in not seeing it as any kind of absolute right.

Epstein and Kobylka argue that other justices probably could never have been persuaded, offering another opportunity to consider their distinction between legal argument and political conviction. They note that Rehnquist and White were always opposed to abortion, and they call this a choice determined by ideology not law. Similarly, it was entirely predictable that Justice Scalia would want to dismantle ROE. Indeed, in WEBSTER he castigated the majority for dismantling ROE without actually saying that was what they were doing. In noting Scalia's likely pro-life stance, Epstein and Kobylka note "The newest justice had been appointed in 1988, three years into the Reagan and Meese "litmus test" scheme; he was a Catholic; and he was a man...." (p. 297) Such an approach downplays the significance of legal argument for such a person and the factors they mention make little of legal doctrine. But the justice who wrote the majority opinion in ROE was a man. There are no significant differences of opinion on abortion by gender among the general public. Not all Catholics oppose abortion as a matter of public policy; Governor Cuomo is only the most outstanding public figure in that position. Furthermore, as careful feminist work has shown, the matter of religion and pro-life beliefs is somewhat complicated by the fact that many activists CHOSE their religion rather than being born into it, and chose it in part for the traditionalism of the beliefs embodied in the religion. Political beliefs ought to be taken to have reasons. In turn, given the openness of legal argument in the United States, those reasons can probably be part of or translated into legal argument.

If one wishes to argue that legal argument is a significant factor in decisionmaking, there is no reason to say it only matters for swing justices such as O'Connor. Instead, one can take the legal arguments as mattering to justices such as Scalia as well. First, the "litmus test" can be seen as a political and legal evaluation for appointment, just as it was offered. Second, like Rehnquist, Scalia has been committed to federalism and has a perspective on constitutional construction that is skeptical of fundamental rights. These are outlines of what an account of Scalia's jurisprudence would look like. They are legal and political concerns, not easily separable. An account of judicial decisionmaking that takes legal argumentation

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seriously needs to do so for all justices rather than invoking it as a residual category. Differences can be accounted for within the confines of legal argument. Second, as this rich work shows, the confines of legal argument in appellate courts in the United States are not all that confining, an interesting point in itself. In abortion cases subsequent to ROE, the justices received a range of amicus briefs. The pro-choice ones were intended to show the wide base of support for ROE (pp. 269-278). They made arguments, and Epstein and Kobylka argue they made mistakes in those arguments, but part of legal argument was showing the base of support or criticism of ROE. In the cases subsequent to FURMAN, while the public reception of FURMAN was probably important, the evidence concerning the use of the death penalty was considered by the groups presenting to be crucial. All of this is encompassed within legal argumentation.

This book provides a rich and useful account of the voting patterns in the Supreme Court, solicitor general strategy, public opinion and group efforts in assessing doctrinal changes in two politically contentious areas. Its mustering of evidence allows a reader to understand and consider carefully the arguments offered. Indeed, one of the strengths of the book is that it invites reconsideration of the distinction between law and politics that it uses. In its strength of attending closely to two areas of law also rests an important weakness. For in its focus on change it perhaps overstates what needs to be explained. Legal change has not been as dramatic as Epstein and Kobylka on the surface claim. However, this rich account allows just that kind of evaluation, allowing us to open the question of legal change beyond the book's focus on the Supreme Court.