Vol. 11 No. 1 (January 2001) pp. 57-60.

CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME by Forrest Maltzman, James F. Spriggs II, and Paul J. Wahlbeck. Cambridge: Cambridge University Press, 2000. 206 pp. Cloth $49.95. ISBN: 0-521-78010-1. Paper $17.95. ISBN: 0-521-78394-1.

Reviewed by Maxwell L. Stearns, School of Law, George Mason University.

In CRAFTING LAW ON THE SUPREME COURT, Professors Maltzman, Spriggs, and Wahlbeck present a dynamic model of interactive Supreme Court decision making, which they then test using their own innovative database. The database is limited to full disposition opinions in the Burger Court (from 1969 to 1986). Relying upon the available files of Justice William Brennan, the authors generated their data from assignment sheets, docket sheets, and circulated records. The circulated records include all majority opinion drafts, non-majority opinion drafts, and letters and memoranda that were distributed to the justices generally. Therefore, they exclude direct interoffice memoranda between specific justices, as opposed to those distributed to the conference as a whole, because a complete record of such memoranda is unavailable (p. 26, n. 15). From these materials, the authors have developed a comprehensive database with which to assess their collegial model of Supreme Court decision making. The model focuses on four discrete but related stages. The stages include the initial assignment of the majority opinion, the writing of the draft opinion, the responses to the draft opinion, and the opinion author's subsequent reaction to those responses (as well as his or her preemptive accommodation in anticipation of particular doctrinal concerns).

The introductory chapter begins with the decision in PENNSYLVANIA v. MUNIZ (1990). The case illustrates Justice Brennan's successful effort as a majority opinion author to recognize but limit a routine booking exception to the requirement of MIRANDA (1966) warnings rather than to align himself with Justice Marshall's dissenting position, even though on the merits he embraced the dissenting view. The case study anticipates the book's emphasis on the tension that arises between the objectives of furthering policy objectives and the constraint posed in a collegial environment, which lies at the foundation of the collegial game. The authors then set out the book's framework and methodology. In four subsequent chapters, the authors develop their collegial decision making model and test it against the database for the each of the successive stages of decision making. The book concludes with a brief summary chapter.

The authors use the data to test two central postulates that drive their research project, the "OUTCOME POSTULATE: Justices prefer Court opinions and legal rules that reflect their policy preferences," and the "COLLECTIVE DECISION-MAKING POSTULATE: Justices will try to secure opinions that are as close as possible to their policy positions by basing their decisions in part on the positions and actions of their colleagues" (p. 17). The outcome postulate tracks the central premise of

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attitudinal scholars, including most notably Professors Jeffrey Segal and Harold Spaeth. (1993). However, unlike attitudinalists, the authors reject the assumption that we can most reliably predict judicial behavior based upon the justices' ideological predilections, without considering how certain strategic interactions between and among the justices affect their ultimate objectives. The collective decision making postulate builds upon the seminal insights of Walter Murphy's classic work, THE ELEMENTS OF JUDICIAL STRATEGY (1964), and more recently, the work of Lee Epstein and Jack Knight, THE CHOICES JUSTICES MAKE (1998). Although these authors generally assume that Supreme Court justices seek to further their policy preferences, they also view the justices as rational actors who sometimes assume policy positions that do not align with their ideal points.

Merging these intuitions, Professors Maltzman, Spriggs, and Wahlbeck posit that Supreme Court justices who are in fact motivated to further their own policy objectives must do so within an institutional framework that requires careful and deliberate attention to the behavior of their colleagues, without whom they are powerless to achieve those objectives. And specifically, justices must carefully anticipate and respond to issues of concern to their colleagues at each discrete juncture in the decision making process. Otherwise, they risk losing fairly limited opportunities to shape emerging doctrine. One valuable insight that emerges from the analysis is that the opportunities for direct negotiation between the majority opinion author and potential joiners is fairly limited and is heavily influenced by timing. Before a majority commits to a proposed opinion draft, the relationship between the author and a potential coalition member resembles that of a bilateral monopoly in which there is a meaningful opportunity for play between two competing sets of ideal points. After the majority opinion author secures five votes, however, the remaining potential coalition members generally confront take-it-or-leave-it decisions rather than continuous opportunities to seek a preferred middle ground.

The authors' successful effort to develop a model that incorporates elements from two important strands of judicial politics research into a single integrated model makes the book important. What makes it more so in my view is that it that the book simultaneously speaks to students of the Supreme Court in political science and in law. If not unique, this is unusual because political scientists tend to study voting patterns based upon statistical analyses of large number data sets, rather than by analyzing nuances of evolving doctrine within Supreme Court opinions. Of course, legal scholars tend to do the opposite. The book contributes toward bridging these two independent disciplines by considering the implications of a carefully constructed database and statistical methodology to the study of developing legal doctrine within Supreme Court opinions. To be sure, these authors employ the approach of judicial politics scholars rather than that of legal scholars. However, the book's overriding premise is that the justices play the collegial game in an effort to shape the content of opinions.

This approach generates findings that in some instances might tend to confirm the constraining role of doctrine. Consider one result that might surprise political scientists more than legal scholars: Cooperative or uncooperative behavior by a particular justice proves statistically insignificant in predicting reciprocal cooperation by other

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justices (p. 121). This finding belies the suggestion by Professors Segal and Spaeth (1993), a claim that might appear closer to a rational actor than attitudinal account that Justice O'Connor's difficulty in forming successful majority coalitions stems from her insistence upon writing separately (p. 21). Although the authors reject this hypothesis, they do not offer an alternative. One possible alternative that would potentially explain the same phenomenon would underscore the important role that legal doctrine plays to individual justices. Simply put, Justice O'Connor's idiosyncratic doctrinal views might be an independent cause of both her tendency to write separately and of the tendency of colleagues not to join her opinions. If so, this would demonstrate that from the perspective of the individual justices, independent doctrinal views prove to be of greater importance than cooperative strategies underlying tit-for-tat games in determining whether and when to join an opinion.

Although this book is thus helpful in bridging the disciplines of political science and law, the nature of the data and the methodological approach will no doubt render the book more accessible to, and more widely read among political scientists than legal scholars. This results from the underlying mathematics, which the authors nicely summarize in accessible prose, and the use of proxies that will seem peculiar to lawyers. As one of several potential examples, many lawyers would question whether the number of days between an opinion assignment and the issuance of a draft opinion provides a meaningful proxy for preemptive accommodation (p. 108). More importantly, legal scholars will likely find themselves wishing that the authors had filled in substantially more detail about the precise issue in a draft opinion that gave rise to a response to wait, suggest modifications, or write separately. Although the authors provide some examples, in many case illustrations, the conference memoranda are discussed in a doctrinal vacuum. In addition, in the discussion of potential concurrences, it would help to know whether the justice holding out the threat sought to move the holding in a broader or narrower direction, and whether he or she threatened to undermine a majority. We are occasionally informed, but again, this important aspect of the relationship between opinions -- one certainly central to the collegial game -- is not systematically explored. In those cases in which the threatening justice is the marginal justice needed to form a majority coalition, it matters greatly whether the separate opinion would express a broader rule, thus leaving the remaining members of the original coalition to state the holding (albeit with limited precedential effect) or a narrower rule, thus threatening not only to prevent a majority, but also to express the holding (Stearns 2000). At a minimum, such an analysis is necessary to confirm or falsify the authors' counter intuitive contention that because "one justice is assigned the task of drafting an opinion for the Court, and given the time and effort associated with drafting competing opinions, the final opinions likely will favor the author's preferred positions, rather than converging on the views of the median justice" (p. 98)

These minor qualifications should certainly not detract from what is a highly valuable contribution to the existing literature on the Supreme Court. The authors provide a framework with which to incorporate such data into future research. And to their credit, the authors expressly recognize the need to focus upon doctrine in future work (pp. 153-54). I have little doubt that this book will be taken seriously among

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political scientists. Those of us trained in law should also closely consider it. Whether we use the data created in preparation for this book, or construct supplemental multistage data bases, the methodology of CRAFTING LAW ON THE SUPREME COURT provides a basis for testing abstract jurisprudential theories with reference to critical junctures of Supreme Court decision making that affect doctrine as it emerges within Court opinions. Although law professors are often prone to grand theories, empirical analysis of this sort will allow us to test those theories with reference to the precise negotiations that gave rise to critical text. In many instances, such data has the potential to confirm theories about the true driving force behind a particular opinion. In others, we may be left with Chief Justice Hughes's apt remark that "if he needed a fifth vote of a colleague who insisted on putting in a paragraph that did not 'belong,' in it went and let the law reviews figure out what it meant" (p. 101, internal quotation omitted).

REFERENCES:

Epstein, Lee, and Jack Knight. 1998. THE CHOICES JUSTICES MAKE. Washington, DC: Congressional Quarterly Press.

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

Murphy, Walter F. 1964. ELEMENTS OF JUDICIAL STRATEGY. Chicago: University of Chicago Press.

PENNSYLVANIA v. MUNIZ, 496 U.S. 582. (1990).

Segal, Jeffrey A. and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. Cambridge: Cambridge University Press.

Stearns, Maxwell L. 2000. "The Case for Including Marks v. United States in the Canon of Constitutional Law," CONSTITUTIONAL COMMENTARY 17: 321-339.