Vol. 6 No. 3 (March, 1996) pp. 51-52

A YEAR IN THE LIFE OF THE SUPREME COURT by Rodney A. Smolla, (Editor). Durham: Duke University Press, 1995. Cloth $39.95. Paper, $14.95

Reviewed by Ronald Kahn, Department of Politics, Oberlin College.

This book consists of eight essays on major cases which were decided during the 1992-3 term of the Supreme Court, plus an introductory essay on "Personality and Process," by Rodney A. Smolla, Hanson Professor of Law, College of William and Mary Marshall-Wythe School of Law. The more important cases profiled include: R.A.V V. CITY OF ST. PAUL (1992), hate crime legislation; UNITED STATES V. FORDICE (1992), race discrimination in southern colleges caused by the effects of segregation; and ZOBREST V. CATALINA FOOTHILLS SCHOOL DISTRICT (1993), aid for the handicapped attending parochial school. The book concludes with an essay by Tony Mauro of USA TODAY, on "The Supreme Court and the Cult of Secrecy."

Leading journalists, each of whom has in the past or is presently covering the Supreme Court, contribute an essay on a case from the 1992-3 term of the Supreme Court. These include: Paul Barrett (Wall Street Journal), Richard Carelli (Associated Press), Marcia Coyle (National Law Journal), Lyle Denniston (Baltimore Sun), Aaron Epstein (Knight-Ridder Newspapers), David Savage (Los Angeles Times), and Stephen Wermiel (Wall Street Journal). Kay Kindred, a professor at Marshall-Wythe School of Law, also contributes a case study.

The short case studies are well-written. They provide an undergraduate student in an introductory course on law or the Supreme Court (or perhaps more appropriately a non-student reader) with the following: an introduction to factors which influence whether an individual gets his or her day before the Supreme Court; an understanding of the plight of citizens seeking redress from the federal courts (perhaps the most important contribution of the book), information about the cases heard in state and federal courts prior to Supreme Court action; and views on the motivation of justices when they write majority opinions. At times the reader is offered thoughts about possible social, political, and legal consequences of a case.

Unfortunately, readers will get little else and little in the way of a coherent analysis of Supreme Court decision-making and the process of doctrinal change. I say this not to be rude. In the hands of a superb teacher on judicial process and constitutional law, the stories presented in the case studies might come alive for the student -- but only when they are carefully taught in the context of a sophisticated analysis of Supreme Court decision-making and doctrinal change.

For example, since there is no serious common framework for the analysis of these cases and no systematic comparison of them, it is not clear what each case individually or taken together means as an exemplar of Supreme Court decision-making and the process of doctrinal change. Worse yet, I fear that students reading the introductory chapter on personality and process and the case studies might think that its simply the personality of the justice writing the majority opinion or a fact from his life that explains case outcomes. In several of the case studies,

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a contributor provides a one or two page biography of the justice who write the majority opinion, along with the impression that a specific fact in a justice's life explains the justice's approach to the case. No serious approach to Supreme Court decision-making -- whether of the institutional, attitudinal, rational choice, law and society or some other variety -- is explored in the book. Moreover, there is nothing in the book about the role of constitutional theory and the interpretive community, which consists of legal scholars, court journalists, jurists, and the informed public, on doctrinal change.

Nor does Smolla justify the choice of cases presented in this book, except to say they were decided in the 1992-3 term. The short introductions to the case chapters do not help to achieve coherence because the author offers different types of information in each introduction. In some, he provides very brief notes on major precedents to the case discussed in a chapter; in others, he offers a quite short histories of the law that the Court is interpreting; and, in others a too short history of a public policy is provided. No attempt is made in the chapter introductions to link the case studies to remarks on personality and process in the analytically weak introductory chapter.

My concern is not that Smolla should have expected these distinguished journalists to become political scientists. However, as with any book of essays one can expect the editor seek coherence in the volume. Smolla has not provided the reader with an adequate framework on Supreme Court decision-making, judicial process and/or doctrinal change; nor has he required the case-study authors to respond to a uniform set of questions for inquiry in writing their case studies.

Coherence could have been provided by the addition of a final chapter which explores the implications of the stories told in each of the case chapters -- perhaps by comparing how cases get to the Supreme Court, how they are decided, and their impact on society. The final essay, "The Supreme Court and the Cult of Secrecy" does not build on, or really speak to, the information presented in the case studies. Nor does it provide a serious and careful approach to many important issues which are raised by the televising of the Supreme Court and the poor quality of evidence that is available to scholars on the inner workings of Supreme Court because of secrecy. It is a polemical call for televising of the Supreme Court and for less secrecy.

Unfortunately, the lack of a coherent framework in the book has important consequences for young readers who are just entering the world of judicial politics. I fear that students, and non-students, will try to fill the many gaps in the information that is presented in the case studies (and the reasons for why the cases turned out as they did) with contemporary stereotypes about law, individual Supreme Court justices, the Supreme Court as an institution, and the likelihood that individuals and groups will get their day in Court. Such stereotypes are already rampant in this age of bottom-line reporting and media sound bites.