by Jeffrey A. Segal, Harold J. Spaeth, and Sara C. Benesh. New York: Cambridge University Press, 2005. 424pp. Cloth $85.00/£55.00. ISBN: 9780521780384. Paper $28.99/£21.99. ISBN: 9780521785082.
Reviewed by David Klein, Woodrow Wilson Department of Politics, University of Virginia. Email: dek5b [at] virginia.edu.
As massively and deservedly influential as it is, Segal and Spaeth’s THE SUPREME COURT AND THE ATTITUDINAL MODEL (both editions) contains some stylistic tension. At its core is a forceful argument targeted at academic specialists and backed by sophisticated empirical analyses. This core is not readily accessible to undergraduates or other general readers; nevertheless, it is accompanied by much that appears to be aimed at precisely those audiences and is of less value to the specialists reading it for its central argument. THE SUPREME COURT IN THE AMERICAN LEGAL SYSTEM, which brings the talents of Sara Benesh to the authorial team, can be seen as an attempt to resolve this tension. Without unduly simplifying either the argument or evidence of SCAM, THE SUPREME COURT IN THE AMERICAN LEGAL SYSTEM concentrates on reaching non-specialists, providing an overview of judicial process and politics and spreading the word of attitudinalism. In this respect the book is a rousing success. It also seems intended to go beyond SCAM in another way, by more thoroughly situating Supreme Court politics within the larger judicial system. Here, too, it is successful, but not, I think, as completely.
Longer and denser than most textbooks in this area, the book is divided into four large sections. The first introduces the legal and attitudinal models and presents an attitudinally-tinged tour of Supreme Court history. The second section surveys procedural rules and contains much that is relevant to trial courts in a book that otherwise tends to focus more on appellate courts. In the third and fourth sections, the authors turn to individual courts, spending a chapter each on state, federal district, and federal circuit courts before turning to four chapters on the Supreme Court. The substantive topics in these two sections include selection, agendas and caseloads, decision making, and, at the Supreme Court, opinion assignment and writing. The book concludes with a single chapter on the impact of judicial decisions.
Given its broad coverage, the Supreme Court in the American Legal System would serve very well as the primary text for a course on judicial process or politics, especially for an instructor with a behavioral bent. It would also make an excellent supplement to a course on constitutional law. Instructors who prefer to range broadly across topics related to judicial politics should be aware that it does not have much to say about law-and-society subjects like litigation or the legal profession, nor [*805] does it attempt to cover other related fields like law and economics. Furthermore, while the book is admirably clear about the stakes involved in the exercise of judicial power, instructors wishing students to delve deeply into normative debates about judicial review and related topics would need supplemental texts.
The authors make several somewhat unusual choices in the book. Although occasionally taken aback by them, by the end of the book I was persuaded that the choices were sound – even, in one or two cases, inspired. One such choice is stylistic. Many members of the Law and Courts community will recognize the wit and erudition on display here. (Who else would write that justices “are not nanocerebral nonentities slavishly adhering to the diaphanous fabric of ethereal legal principles and doctrine”? [p.323]) Newer and more surprising is the authors’ frankness. I love the confession on p.153 that one of the authors, “having heard nothing about a supreme court election, . . . proceeded to vote for all the women, only subsequently to discover that they were the most ideologically distant from the author’s policy orientation.” Revealing the professional scholar’s human weakness to student readers may have risks but probably pays off handsomely in reader trust and engagement. More importantly, while maintaining a scrupulous ideological evenhandedness, the authors freely share their opinions. In my experience, it is not unusual for undergraduates reading SCAM to come away from it unsure what normative implications they are meant to see. No reader of the new book’s depiction of the “mythology of judging” (pp.16-17) could feel uncertain about what the authors think is at stake. Critical, even sarcastic, commentary is sprinkled throughout the book. While perhaps gratuitous in spots, for the most part it is well calculated to keep readers alert and provoke responses.
A second choice – perhaps surprising in a book about ideological decision making by three authors with a penchant for quantitative studies of behavior – is to devote considerable space to law and history. The treatments of procedural rules, in particular, are so far from cursory as to raise concerns about the patience of lay readers. But patience here would be well rewarded; the discussions are highly engaging and informative, enough so that non-lawyer scholars could find them a valuable reference. That said, I believe there is something of a lost opportunity here, in that excellent discussions of, say, justiciability and jurisdiction are not fully integrated into the book. These come early, and by the time readers reach the chapters on judges’ behavior, especially at the Supreme Court, they may forget them or have trouble seeing what implications they have for decision making.
The authors miss no opportunity to include original statistical analyses, and I think the book is much the stronger for this decision. To test whether “extralegal factors that ought not affect sentencing” (p.209) nevertheless do so in district courts, they present a full regression analysis in Chapter Eight. This is one of the more complex analyses in the book, but statistical tables and graphs appear every few pages in the last several chapters of the book. Naturally, these analyses will present challenges to readers who lack [*806] statistical training and may even alienate some. But they are clearly explained and well integrated into the flow of the book. Moreover, in addition to being interesting in themselves, they send readers a message: If you have a question, you do not necessarily have to rely on others for answers; you can collect some data and find an answer for yourself. It is easy to imagine undergraduate readers of this book being inspired to conduct research of their own.
Both the discussions of technical legal issues and the inclusion of original empirical analyses illustrate an important strength of the book: it refuses to condescend to its readers. For this reason, while I do not suppose that all undergraduates would respond well to it, it would be an outstanding choice for advanced undergraduates who are willing to work and for both law students and graduate students.
Of course, any book occasions some quibbles. To my mind, the book’s recurring references to BUSH v. GORE, while stylistically effective, are somewhat misleading. Even to the most committed attitudinalist, BUSH v. GORE must stand out as unusually egregious, defying as it does virtually any attempt to understand it as an expression of something other than justices’ policy preferences. Furthermore, together with the book’s general emphasis on constitutional law, it may give the mistaken impression that almost all of the Court’s work involves constitutional issues. I think the book would benefit from more attention to other types of law, especially statutory, both in treatments of courts’ dockets and elsewhere. For instance, a discussion of the high barriers to habeas corpus raised by the Antiterrorism and Effective Death Penalty Act of 1996 could add considerably to existing sections on access to courts and comity between federal and state courts.
A related but probably less fair criticism is that the book does not entirely live up to the implicit promise of its title to demonstrate how the Supreme Court fits into the larger legal system. This is not to say that the book stints on other courts or otherwise implies that they are insignificant. The chapters on other courts are thorough and, as noted, often include original data. Furthermore, the authors draw explicit comparisons and contrasts between courts. Importantly, they do not treat the attitudinal model as one-size-fits-all, and they explain clearly why they think it more applicable to the Supreme Court than to others. Nevertheless, this and other comparisons (e.g., of judicial selection and caseloads) are not as effective or easy to follow as they might be if the book’s central chapters were organized thematically rather than by court. And while the authors give some attention to how other courts are affected by the looming presence of the Supreme Court, they could justifiably devote more space to this issue and far more space to the question if and how the Supreme Court is itself affected by the existence or behavior of the other courts.
But this is asking more of a book that already accomplishes a great deal. Although not aimed primarily at academics, THE SUPREME COURT IN THE AMERICAN LEGAL SYSTEM contains enough interesting original data (especially in the chapters on lower federal courts) and a comprehensive [*807] enough overview of the behaviorally oriented literature on judging to reward even their attention. More importantly, one could hardly ask for a more engaging, provocative, and challenging book on judicial behavior for a general audience.
Segal, Jeffrey A. and , Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. New York: Cambridge University Press.
Segal, Jeffrey A. and , Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. New York: Cambridge University Press.
BUSH v. GORE, 531 U.S. 98 (2000).
© Copyright 2007 by the author, David Klein.