
LIGHTING THE WAY: FEDERAL COURTS, CIVIL RIGHTS, AND PUBLIC POLICY, by Douglas Rice. Charlottesville: University of Virginia Press, 2020. 201pp. Hardcover $39.50. ISBN: 9780813943947.
Reviewed by Ryan C. Black, Department of Political Science, Michigan State University. Email: rcblack@msu.edu.
Pop quiz, hot shot: It’s the end of the semester in your judicial politics class and, if your syllabus looks anything like mine, it means you’re covering the topic of judicial impact. Is it perhaps strange to conclude the class with a question that might render the preceding fifteen weeks moot? Absolutely, but that’s not important right now. What is important, is that Douglas Rice’s LIGHTING THE WAY has put together a nice and compact book that breathes new life into the perennially important and longstanding question of whether the federal judiciary can uniquely influence public policy. So, when Dennis Hopper calls you up and asks “what do you do?” in this increasingly absurd hypothetical that I’m spinning out to try to get you to read this review, well, now you know: It’s time to add Rice’s LIGHTING THE WAY to both your class content as well as your preferred citation manager program.
I reach this conclusion because Rice offers at least two new innovations that advance the literature and make LIGHTING THE WAY a book that needs to be taught about as well as cited in your own work. The first advancement is that Rice approaches the judicial impact topic from the perspective of issue attention. As he puts it, “Policymakers have limited time and resources. In allocating some of their finite time and resources to an issue, they change the probability that we might observe policy change” (p. 5). This is a concept that is probably quite familiar to your public policy colleagues since that is where it originates. It is one, however, that hasn’t been regularly examined by us law and courters. Moreover, it turns out that those in public policy have, in general, returned the slight by giving comparatively short shrift to examining the judiciary (but see Grossmann and Swedlow 2015 for a noteworthy exception). What this means, then, is that LIGHTING THE WAY is one of those rare books that actually has something to say across different subfields.
The second major innovation that Rice’s LIGHTING THE WAY brings us derives from the actors he examines. The most prominent studies of judicial impact tend to focus on the activity and action of the U.S. Supreme Court (e.g., Rosenberg 1991, 2008; Hall 2010). By contrast, Rice’s efforts shine a particularly strong light on the activity of the federal district and circuit courts. Thus, those who frequently bemoan our field’s singular focus on the Supreme Court will find LIGHTING THE WAY to be quite refreshing in just how much it has to say about the impact of the lower federal courts. Rice examines overall federal judicial issue attention on the issue attention of the rest of the policy-making system, but also analyzes how the lower courts impact the issue attention of the Supreme Court (and vice versa).
[*171] But, c’mon, skip to the chase! What camp does Rice and LIGHTING THE WAY end up in? Are we talking pro-Rosenberg, pro-Hall, or something else? Fine, I’ll spoil it for you, but I’d like it noted for the record that I’m only doing so under duress. Rice finds that “courts – long understudied by and underincorporated into studies of policymaking – exert important influence at the most fundamental stage of policymaking: determining whether to pay attention to an issue” (p. 4). However, this influence is not uniform or otherwise unconditional. Rather, Rice theorizes, tests, and finds support for a conditional theory of influence. In particular, he argues that influence is going to vary across policy area and will only occur if there is both a political constituency for the area and a constitutional power of the courts to act in that area. More on those below, but Rice’s brass-tacks answer to LIGHTING THE WAY’s motivating question is (a theoretically motivated) “Yes, but it depends.”