Vol. 3, No. 6 (June, 1993), pp. 53-55.

COURTS, POLITICS, AND THE JUDICIAL PROCESS by Christopher E. Smith. Chicago: Nelson-Hall, 1993. 357 pp. Paper $29.95.

Reviewed by Charles R. Epp, Department of Political Science, Indiana University.

Christopher Smith's text on the judicial process follows a fairly standard format (covering key actors, civil and criminal justice, and appellate court policy-making) but emphasizes to a greater extent than similar texts a normative concern about the unequal treatment of the poor and racial minorities in the judicial process. That concern comes through clearly and is likely to arouse students' interest in a way that texts with a more neutral tone often fail to do. In that sense this text is a welcome alternative. It covers a broad range of issues and is appropriate in intermediate and upper-level undergraduate surveys of the U.S. judicial process. It has a few weaknesses, though, among them minor problems related to organization, the absence of some important issues, and a general absence of illustrative graphics. The chapter structure of Smith's text is fairly standard. The book begins with an introductory chapter emphasizing that politics is the primary influence on the judicial process and a chapter on the structure of the U.S. judicial system. The next chapters focus on central actors in the judicial process (a chapter each on lawyers, judicial selection, and judicial decision making), followed by a chapter each on the criminal and civil justice processes, followed by a chapter on appellate courts, one on the Supreme Court, and one on judicial policy making. The book concludes with a really nice chapter placing several current controversies (lawyer populations, litigation levels, achievement of justice) in comparative perspective. Smith's comparative treatment of those particular issues is, in my view, far more thorough and carefully done than the brief comparative additions to other American judicial process texts. My only complaint is that many of Smith's comparative observations would be valuable contributions to earlier chapters, all of which entirely lack a comparative dimension. For example, the chapter on civil litigation contains a brief discussion of the "litigation explosion" debate that would have benefitted from his later comparisons. A significant omission in the book's organization is any sustained discussion of the various types of law within the U.S. system and of the differences between the common law system and other legal systems.

Smith's conceptual framework focuses on the behavior of key actors within the institutional context of the judicial system. He says in the introduction that the book's "underlying theme is that court organization and the outcomes produced by the judicial process are actually the product of politics" (p. 3). The claim that law is strongly influenced by politics is, of course, a central theme of many judicial process student texts but Smith articulates it somewhat more explicitly and more repeatedly than in other texts. In addition, he defines politics more behaviorally than in some other texts by focusing primarily on the wills and interests of individuals (p. 3). He tempers this somewhat narrow definition, though, by returning repeatedly to the role of class and race in structuring the nature and outcomes of the judicial process. Smith's largely

Page 54 follows:

behavioral framework does not include a cultural perspective on law although such an addition might support and enrich his discussion of the treatment of the poor. In general, he fulfills the second part of his promise, that politics influences the outcomes of the judicial process, more effectively than he fulfills the first part, that politics influences the structure of the judiciary.

While Smith promises to emphasize the political sources of court organization, and returns to that theme in the conclusion to his chapter on court organization (chapter 2), the emphasis generally does not come through clearly in the text. Smith does include a good discussion of political disputes over state judicial reform. But he omits any sustained discussion of the political disputes that led to the basic structural characteristics of our dual court system, the political background of such important institutional developments as discretionary jurisdiction in the U.S. Supreme Court and some state supreme courts, and more recent political disputes over some federal appellate circuits. Additionally, the forces that sustain judicial federalism remain very important in the U.S., but the text pays little attention to them. Judicial federalism, in turn, produces very important consequences, some of which Smith examines, for example "forum shopping." But his claim to examine the political sources of court organization remains unfulfilled, at least in regard to some of the most significant characteristics of that organization.

Smith fulfills much more thoroughly the second part of his promise, that politics (or, perhaps more correctly, the distribution of power) influences judicial outcomes, particularly with regard to his general theme that outcomes tend disproportionately to harm the poor and minorities. I have only a few observations on his discussion of outcomes. One is that I was surprised, given Smith's emphasis on what others call the "have nots," that he never mentions Galanter's famous distinction between repeat players and one shotters. Inclusion of that conceptual distinction would have strengthened significantly the chapter on the civil justice process (chapter 7). That chapter prominently discusses the role of interest groups in reform litigation but ignores the role of major institutional actors, particularly insurance companies, in ordinary civil litigation. Also, surprisingly, the chapters on judicial decision making (ch. 5) and policy making (ch. 10) almost never mention interest groups as forming an important part of the environment of appellate judicial agenda setting, decision making and policy making. My second observation is that Smith's recurring attempt to replace "law" with "politics," while often leading to illuminating insights, becomes forced at places. For example, in illustrating the value of a political perspective on judicial decision making, Smith contrasts a legal analysis of Scalia's decisions (in part, his opposition to affirmative action) with a "political science" analysis of Souter's first term, focusing on the number of Souter's opinions and on his voting congruence with the Chief Justice (pp. 145-149). While, admittedly, Smith builds a richer analysis of Souter's first term than simply the number of opinions and voting congruence, I am troubled by the implication that a political science analysis does not include any concern for a Justice's substantive positions on constitutional policy. "Law" and "politics"

Page 55 follows:

need not be contrasted so starkly. By contrast, I found Smith's discussions of the role of discretion in legal reasoning (pp. 132-136) and the criminal justice process (chapter 6) to be outstanding.

Smith's emphasis on class and race brings out, with greater urgency, a number of important points that tend to be ignored or mentioned only in passing in other texts. One is the continuing racial and economic exclusivity of the legal profession and its continuing failure to provide access to the justice system to the poor and the lower middle class (but, surprisingly, he only barely mentions the explosive growth in the number of women lawyers) (pp. 70-71, 78). Another is a wonderful, indignant discussion of federal judges' complaints about their salaries and what those complaints indicate about the judges' lack of familiarity with the conditions of life for many ordinary citizens (p. 124). Smith's normative concern also leads to a more sustained, urgent discussion of the plight of poor criminal defendants than one usually finds in such texts (throughout chapter 6). He also discusses, more forcefully than most, the erosion of due process posed by the Supreme Court's treatment of in forma pauperis petitions (p. 265) and some forms of alternative dispute resolution (211-213).

The book is generally well-written, at a level suitable for undergraduate students above an introductory level. Unfortunately, though, there are very few figures, photographs, charts, or sidebars to break up the pages of straight text and to help illustrate important points. Additionally, some of the figures and charts that are included have no clear value: pages 28 and 29 contain a chart identifying the judicial structures in all fifty states -- why? Smith's clear normative concerns, however, may act to balance out those limitations and keep students' attention.

Professors using Smith's text may wish to supplement it with several additional materials. One necessary addition will be figures illustrating the growth in lawyer populations, changes in litigation levels and in types of cases, changes in the Supreme Court's support for different kinds of claims or litigants, and the like. Another will be a discussion of the main types of law within the U.S. system and a comparison of common law and civil law systems. Additionally, teachers may wish to add a case study of the law in action -- for example, Gerald Stern's book on the Buffalo Creek Disaster. My overall assessment is that this is a very good student textbook. It has several problems in its current form. But few texts with which I am familiar present such a clear evaluation of the judicial system's operation and none that communicates such a clear concern for equality in the judicial process.