THE ACTIVIST ADVOCATE: POLICY MAKING IN STATE SUPREME COURTS by Charles S. Lopeman. Westport, Ct: Praeger Publishers. 144 pp.

Reviewed by Rorie L. Spill, Department of Political Science, Binghamton University (SUNY).

The ACTIVIST ADVOCATE takes us where many have often lamented we need to go, but where few have actually traveled: to the state high courts. Professor Lopeman takes this trip to re-examine our ideas about judicial decision-making. Professor Lopeman, using a most different systems design, examines the presence or absence of activist policy-making by six different state supreme courts (Indiana, West Virginia, Ohio, Florida, Pennsylvania and Idaho) in an attempt to isolate what factor or factors leads to a more aggressively activist bench. The states provide him with variation of institutional, political, and regional variables. In the end, the only consistent factor present in activist courts and absent in restrained courts is an activist advocate -- a jurist trained in a national law school of great repute and with some political experience and/or ambition beyond the judiciary.

The book is logically ordered. The first chapter introduces the reader to policy-making by state supreme courts and the examples provided clearly illustrate the importance and effect of these institutions. It is here that the author defines and narrows his conception of the terms: policy-making and intentional activism. The latter term is particularly tailored to fit the needs of the analysis and the availability of data. The author relies heavily on Bradley Canon's (1982) definition of activism quoting that "[a] court is activist when its decisions conflict with those of other political policy-makers" and adding a "clarifying enlargement . predecessor courts" (p. 3). Without this reduction in the scope of the term, empirical analyses of the causes of activism would be impossible. That is, as Lopeman appropriately notes, it is impossible to differentiate between active affirmation of current policy or precedent and a restraint or deference to the elected branches or previous court doctrine. With these distinctions now in place, he turns to an abstract discussion of activist decision-making as a two-stage process. Lopeman does not ascribe to the attitudinal model as the sole determinant of judicial behavior; rather, he returns to James Gibson's (1978) model of decision-making to identify these two stages. First, a judge must decide if his role conception (what judges ought to do) allow her to impose her preferences. If the decision is in the affirmative, the judge can then decide whether the outcome of a case should follow a new course or not. Only the activist jurist needs the second stage; the restrained jurist will not follow a new course regardless of her personal preferences. The presence of an activist jurist, then, affects the court around her and her role conception diffuses to the panel creating an activist court that defies legislative, executive or precedential prerogative.

The next four chapters (Chaps. 2-5) present case studies of the six courts included in the examination. Chapters 2-4

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are in-depth analyses of the three activist advocates and their home institution. Sheppard of Indiana, Neely of West Virginia and Celebrezze of Ohio are identified as activist advocates because of their legal training, and/or their political experience or ambition. These jurists are presented as the catalysts that re-invigorate their courts and their state's doctrine, particularly in the areas of common law and sovereign immunity.

Chapter 5 presents a brief look at three other courts (Florida, Pennsylvania, Idaho). These courts are given briefer treatment since they were quite restrained in their activity, and in some instances they could be characterized as reactionary. There were no activist advocates on these courts to instill a new sense of purpose to those sitting on the bench; these courts left the policy-making to the legislature, even in instances where they wished the legislature would act and said so in published opinions. The final chapter (Chap. 6) presents the comparative analysis revealing in a more systematic fashion the similarities and differences among the cases. It is here that he also more clearly states how these cases aid his analysis. Although I would prefer this particular argument to be before the individual cases rather than after, it is justifiable to include it here as well. The book concludes with a justifiably reserved assessment regarding the role that is played by an activist advocate and the effect of this type of jurist on a previously inactive bench.

Although I applaud the effort to move some of our attention to a comparative assessment of the state high courts, I have some reservations and concerns regarding the generalizability of the study. First, the definition of activism is quite narrow. Lopeman states that a court is only equal to the governor or legislature if its collective decision is different from some other authority. But in truth, different in this study means reverse or oppose. Indeed, in his description of the inactive Florida Supreme Court, two instances are noted, one where the court overturned past precedent and one where they narrowed a statute abrogating sovereign immunity to such a degree that it became "the rule rather than the exception" (p. 95). These actions are not sufficient to mark this court as activist. However, the number of active decisions by any of three courts labeled active is not large either. Indeed, the small number of activist decisions by each of these courts requires that any conclusions based upon such a small "N" should be made cautiously, as Lopeman does. For instance, according to the author, between December 1985 and 1990, the Indiana high court issued 11 activist decisions. However, according to the table 2.1 (p. 22), between 1986 and 1990 the Indiana court heard 1402 direct criminal appeals and 167 civil transfer cases, totaling 1569 cases. Additionally, table 6.2 reveals that the Ohio Supreme Court issued 26 activist decisions over a 10-year period (1981-1991). According to the author, in 1986 this court heard 91 cases and has discretion over its docket. The author does not provide total caseload statistics for the Ohio court or the other courts in the study. Generally speaking, the number of total activist decisions is not quantified, nor does it need be for the purposes of this volume More importantly, the definition of and the identification of an activist advocate seem to be somewhat ad-hoc and not well supported. The criteria are based upon a comparison of the backgrounds of U.S. Supreme Court justices and state supreme court justices. In general, U.S. Supreme Court justices attended elite law schools, they usually have more experience in

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executive or federal policy-making roles, they are appointed for life, and the institution has a history of policy-making. This resume is contrasted with the overall resume of state supreme court justices in chapter 1. State supreme court justices usually attend local law schools, have experience on inferior courts which reinforces a restrained role conception, or at best "attenuated service in state legislatures" (p. 9). These background characteristics, again, reinforce a restrained role. Thus, we can identify activist advocates in the states by finding jurists with national experience and elite education. However, I think it should be noted that, although most U.S. Supreme Court justices share these qualities, they vary greatly in their level of activism, particularly given the narrow definition of activism used in this account.

With these criteria in mind, the author examines the Indiana, West Virginia and Ohio Supreme Courts. First, we are introduced to Justice Sheppard of Indiana. He is the epitome of an activist advocate and presents the best example of the phenomenon Lopeman is focusing upon. He attended Yale Law School, worked for two administrations in D.C., ran for mayor of his hometown, and wrote extensively about his role conception. No other members of the court during his tenure share these attributes. After his ascension to the Court, the activist policy-making begins.

However, the attributes of the other two advocates are not as definitive. Former Justice Richard Neely of West Virginia also attended Yale, but his only other electoral experience is in the state legislature. This type of experience, the author notes, does not serve to promote an activist role conception. Additionally according to the author, the writing by this Justice is scant and the strongest evidence of his role conception comes from one interview. Most other evidence comes from the opinions the author has identified as activist. However, it should be noted that Justice Neely has written several books (Neely 1981, Neely 1983). Thus, this evidence contributes both to the dependent and independent variables. He is elected in 1972, but the larger changes in the policy-making activity of this court occur in 1976 and in many instances our advocate was dissenting using restraintist language. To his credit, the author concludes by noting that his West Virginia advocate had a more limited effect on his court and brethren than Justice Sheppard of Indiana.

Finally, Justice Celebrezze of Ohio is the weakest case and Ohio follows a different pattern than either Indiana or West Virginia. Celebrezze did not attend a nationally reputed law school. He did not work in any administrative capacity, although he had clear gubernatorial ambition. His activist stamp cannot be found in any writings, rather it is attributed to him based upon his decisions and his electoral victory over an incumbent Republican justice to a Republican court. For his first nine years on the Court, Celebrezze's role conception does not diffuse to his brethren. Indeed, it takes the election of fellow Democrats to allow Celebrezze to lead his court into an era of policy-making, but the era does not end when Celebrezze leaves the court. The identification of advocates, then, is at best quite variable.

The other major reservation I have regarding this comparison is the questions that arise from the historical description of these courts. For example, prior to Sheppard's tenure, the Indiana Supreme Court reversed many activist decisions by the intermediate court within the Indiana

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system. Given the description of lower court judges that justifies the definition and identification of an activist advocate, what accounts for this behavior? Also, two of the three non-active examples, Florida and Pennsylvania, have noted activist pasts. During the 1970s, Lopeman reports that both of these high courts displayed a great deal of activism that the non-active courts rallied against in the 1980s, yet there is no attempt to show how the defeat or retirement of an activist advocate caused this era to end. According to the other cases, the impact of an activist advocate does not necessarily dissipate once he leaves the court, so how does the role conception diminish in these cases?

In the end, this book gives us some good insight into the workings of six different state systems and a brief history of these courts. The comparative design is appropriate and the conclusions are reasonable and cautious. Indeed, Lopeman is very honest and attentive to many of the issues inherent in studying different systems in this fashion and to the variation in the attributes of his activists. The book is extremely accessible and achieves, and does not reach beyond, its stated purpose. More importantly, Lopeman tries to identify factors that cause variation in a justice's role conception and show the potential influence of role on the functioning and decision-making of a collegial decision-making body.

REFERENCES:

Canon, Bradley C. 1982. "A Framework for the Analysis of Judicial Activism."

In SUPREME COURT ACTIVISM AND RESTRAINT. Eds Stephen C. Halpern and Charles M. Lamb. Lexington, MA: Lexington Books.

Gibson, James L. 1978. "Judges' Role Orientations, Attitudes, and Decisions: An Interactive Model." THE AMERICAN POLITICAL SCIENCE REVIEW. 72: 911-924.

Neely, Richard. 1981. HOW COURTS GOVERN AMERICA. New Haven: Yale University Press.

______. 1983. WHY COURTS DON'T WORK. New York: McGraw-Hill Book Co.

Copyright 2000 by the author.