Vol. 5 No. 2 (February, 1995) pp. 30-32
COURTS, POLITICS, AND JUSTICE, 3rd Ed., by Henry R. Glick. New
York: McGraw Hill, Inc., 1993. 452 pp. Paper $39.
Reviewed by Phyllis Farley Rippey, Department of Political
Science, Western Illinois University.
Just as more questions are raised than answered in law, Henry
Glick raises more questions than he answers in COURTS, POLITICS,
AND JUSTICE. This is all to the good; especially since his text
is well placed in an undergraduate political science classroom.
With students immersed in a society that idealizes and
romanticizes courts, lawyers, and the law, it is imperative that
those of us seeking to educate them about law have texts that do
not further foster the facile myths with simplistic answers.
Works that focus on "the law" and deny the play of
politics are useless as explanations of our legal system. Glick
points the student to the role played by both the legal and
popular cultures in his opening chapter and keeps this theme
alive throughout the book. He insistently cautions against
divorcing law from politics in any study of courts and he also
keeps reminding the reader that the legal system is not run by
disembodied agents, but rather people who bring interests,
perspectives, and foibles to their work. He says, "Law is
not adequate for understanding judicial decisions....Personal
decision making and compromise are the keys to understanding how
disputes are settled....We have to approach courts from the
perspective of judicial politics, not law" (p.21).
Using this perspective, Glick describes the structure of both
state and federal court systems in rather broad generalities and
reminds us that you cannot understand what is going on by looking
at the apparent hierarchy of the systems on paper. He points to
the wide differences among localities, states, and regions and
once again returns to the theme of human beings making decisions
because of realities particular to them. Consequently, those who
attempt to bring about court reform, to name one issue he raises,
will fail unless they factor in the psychological, political, and
social forces acting on the decision makers. His back and forth
movement between how the system is, or works, on paper and the
forces impinging on it to deny that picture makes his book an
excellent lever for gently prying loose the naive beliefs that
most undergraduates bring to classes on the law.
Given its audience of undergraduates, the text offers what I
consider an appropriate mix of extended prose interspersed with
charts, tables, and examples of legal documents. In this age of
mixed media and factoids delivered in flashes, the book is
clearly behind the times, however. Again, though, I see this as a
plus. One actually must read the text to understand the points
and cannot, instead, browse through diagrams and bits of boxed
information and expect to learn sufficiently. It lends itself,
therefore, to upper division courses which test for knowledge
with essay exams and want a text that can be the basis for class
discussion. Some of my students (not the better ones) complained
that it was hard to study for exams from the book because it was
difficult to "find the facts" in it. While I would tend
not to use a textbook at the graduate level and have used the
book only in my upper division
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course, Glick's work is well above the introductory level and
could be used as a quick introduction to courts and politics for
graduate students not well grounded in the field. It presumes
solid understanding of American politics generally with its
concept of federalism and an appreciation for the demands of
democratic theory; it is not on the knowledge or fact gathering
rung of the learning ladder.
Its organization and the aspects of law and politics covered
underscores its higher aspirations. How well texts are organized
depends to some degree upon how we teach our courses; upon what
matters most to us. Glick and I seem to care about the same
issues. Setting the stage with his discussion about culture and
judicial politics, he moves on to court organization and judicial
selection, but stops along the way to give lawyers and law
practice their due. Besides including an important piece of the
puzzle in terms of what we know from research on the law, this
focus on lawyers is always of great interest to students who
quite often are taking the course because of their own ambitions
to become attorneys themselves. His exploration, however, of the
full spectrum of the profession, put as it is in the context of
politics, sometimes deflates students' enthusiasm for legal work.
Perhaps, not a bad unintended result.
Separating discussion of criminal from civil cases into two
chapters, the middle third of the book gets to the heart of what
most students think of when they think of courts and the law:
criminal law, dispute resolution, trials, and judicial decision
making. In examining these topics, Glick lays out the steps and
procedures and notes the actors involved, but he does more than
this. He critically analyzes why these steps are triggered, who
is likely to win or lose in the process, where and how power is
exercised, and what issues are raised at these points. He is
clearly unsatisfied simply to describe, but he is also not
willing to impose his conclusions as fact. The text is generously
peppered with references to the research of the public law field
which is offered as possible or competing explanations generally
and, occasionally, as the view around which a consensus has
formed. This gives a truth searching rather than truth knowing
tone to the book which scholars should find appealing but
students sometimes find frustrating. Since their frustration
derives from their difficulty with complexity and ambiguity in
the world rather than the book's being unclear or disorganized,
the book is good "medicine" for them.
Besides being good for students, the work offers itself as a
useful reference source for scholars unfamiliar with the issues
raised by public law scholars in their research on the law. For
public law scholars, it breaks no new ground. It is deeply and
firmly situated in legal realism and offers confirmation of what
realists have long thought without taking that thinking to a
higher level. I do not see this as a shortcoming, however. I take
its intended audience to be undergraduates more than scholars and
it suits that audience well. It is written well and at a
sophisticated enough level to stimulate thought in better upper
level students as it informs them about legal/political
processes, issues, and actors. Because of the cultural baggage
most students bring to courses on the law, the book can be
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considered provocative for exploding myths and for the
explanations and issues to which it points. On the other hand, it
is not so provocative as to alienate the yet-to-be persuaded. For
all his arguments about courts as rooted in politics, Glick does
not forget that courts are not legislatures and judges are not
politicians.
In the concluding chapters Glick turns to an extended discussion
of courts as policy makers and poses the question Stuart
Scheingold (1972) put some twenty years ago: how good are courts
as social change agents? Not surprisingly, Glick concludes that
they are only part of a larger political and social system that
must be factored into any explanation of change. Before reaching
this conclusion, however, he does an excellent job of tracing the
web of legal, social, and political interactions and concludes by
looking at specific struggles into which courts have been pulled.
In ending with courts and social change, Glick underscores both
his legal realist view about the law and offers a normative
judgement about what he considers to be the more pressing issues
before the courts: civil rights and the rights of criminal
defendants. That is what I, too, would accent. Those wanting a
focus on the law from the perspective of the police, prosecutors,
and privileged will have to look elsewhere.
Of the various texts I have used in my judiciary course, I find
Glick's most amenable to what I want to focus on and a good core
text around which I can build the entire course. I have not used
it by itself and would consider it inadequate to the task of
providing thought for an entire course. It has foundational value
and works well interwoven with other works that focus on pieces
of the picture only. Other books and essays attending to issues
of race, class, and gender fit well with Glick's approach since
he speaks to them explicitly and they are always implicit in his
discussion; this greatly enhances its appeal, I believe. The only
other text that I have liked as well for my course is Harry P.
Stumpf's AMERICAN JUDICIAL POLITICS (1988). It, too, is a solidly
political science, not criminal justice, text and roots its ideas
in politics and culture. My students, however, found Glick's book
considerably more accessible and seemingly focused more on the
issues of greatest interest to them.
It is said that we abhor in others those traits that we abhor in
ourselves. I imagine the reverse is also true. Henry Glick has
produced a text that, while more reticent in its critique than
mine would be, portrays courts, politics, and justice the way I
do and, thus, I endorse his effort with enthusiasm. What's more,
he presents this very complex picture coherently and consistently
with integrity and illumination. There would be no justice in
asking for more.
Reference:
Scheingold, Stuart A. 1972. THE POLITICS OF RIGHTS: LAWYERS,
PUBLIC POLICY, AND POLITICAL CHANGE. New Haven: Yale University
Press.
Stumpf, Harry P. 1988. AMERICAN JUDICIAL POLITICS. San Diego:
Harcourt Brace Jovanovich, Publishers.
Copyright 1995