EXPLORING JUDICIAL POLITICS

by Mark C. Miller (ed). New York, NY: Oxford University Press, 2008. 368pp. Paper. $42.50/£22.99. ISBN: 9780195343076.

Reviewed by William Haltom, Department of Politics and Government, University of Puget Sound. E-mail: Haltom [at] ups.edu.

pp.765-767

EXPLORING JUDICIAL POLITICS offers instructors and students 20 chapters that could complement conventional texts and common organization of courses regarding judicial behavior. The compendium’s dual themes are that judging blends law and politics and that the approaches researchers deploy reveal the essence of judicial behavior. Editor Mark Miller introduces the volume and subsequent chapters to highlight approaches to and questions in research on judges and their behavior. He notes (pp.1, 3) that political scientists wrote almost all chapters and that the book is very much a work of and in political science. Perhaps it follows that the collection features many chapters about the Supreme Court of the United States, but instructors will find erudite, succinct chapters concerning state courts, lawyers, and jurors as well. The back cover of the book highlights its chapters on race, gender, and terrorism, on interactions between courts and other political or governmental institutions, and comparative judicial behavior. Helpful notes end each chapter and cross-references within chapters deftly direct readers to related material in other chapters. The bibliography is 45 pages long.

As a supplement, this book would offer students figures, graphics, and tables that illustrate important facts about judges and judiciaries. Table 2.1 on judicial selection in states, for example, presents basic information that may pique students’ curiosity and will inform them about vagaries in recruitment of state judges. Table 11.1 provocatively labels regimes and structures of clerks at the Supreme Court from 1882 to the present: Supreme Court clerks as “sorcerers’ apprentices should grab students’ attention. Six formulations of comparative judicial studies (Table 20.2) may usefully introduce some of the approaches scholars have taken to study judges and courts. Jeb Barnes’ diagrams (pp.98-99) and those in other chapters likewise provide revealing frameworks. Richard Pacelle’s heuristics on free exercise policy (Ch. 12) will strike most students as revealing and generalizable for term papers on other policies or policy domains.

For instructors less interested in political science than they are in politics and government, Chapters 4 and 15 are among the more promising. Michael Comiskey’s brief chapter should reveal to students that “the countermajoritarian difficulty” is more often a facile device for practicing politics than a genuine caution about adjudicating appeals. Instructors might profitably combine Comiskey’s chapter with Richard Brisbin’s essay on resistance to judicial decisions and Miller’s chapter on other branches’ interactions with US courts (Ch. 19) to suggest to students that adjudication and litigation are parts of [*766] political and governmental dialogues and dynamism that is legal, political, cultural, and evolutionary.

Nancy Maveety admirably situates research on the behaviors of judges in the behavioral tradition within political science and suggests some newer approaches as well, albeit that many instructors will demand that contextualization range across history, regimes, and cultures beyond internecine disputes within political science. Indeed, interdisciplinary instructors, sociologists, and anthropologists may demand attention to comparativists who formulated ideas about politicking amid law before political science’s behavioral revolution. Many “law and society” instructors, for example, mention Blackstone, Bentham, Marx, Holmes, Durkheim, Pound, Weber, Malinowski, or Hoebel and Llewellyn among big names that preceded Pritchett and Schubert.

Lynn Mather’s consideration of communities of practice among lawyers begins from lawyer jokes but quickly moves readers to a broader cultural understanding of important actors, only some of whom become judges. Readers will see how cultural analysis not common in political science deepens and complexifies understanding of jural phenomena in ways not easily pigeon-holed as either legal or political. Mather exposes puzzles that may entice students to reject simplistic dichotomies in favor of more sophisticated notions.

In like manner, the logistical regression model in Chapter 13 may elude many undergraduates and not a few instructors, but alongside that model the authors of that chapter supply a balanced, sensible conclusion far more sophisticated and fecund than yet another contest in which the Washington Generals represent some deracinated “legal model” and are routed by the Harlem Globetrotters, who play for some attitudinal or other political model. Students who learn that the Supreme Court both follows pre-existing rules and reshapes legal authority to suit the justices’ views will be better prepared for further coursework and reality.

Chapters explicitly devoted to policy (12, 16-18) provide useful substantive information in accessible prose. Barbara Perry’s discussion of race (Ch. 16) and Judith Baer’s discourse on “Women and the Law” (Ch. 17) exemplify, according to Miller, a legal approach to jural policy and so might be compared and contrasted with Pacelle’s modeling of freedom of religion to establish what Miller takes to be legal and regards as political or scientific or both.

If Louis Fisher’s chapter on “Federal Courts and Terrorism” (Ch. 18) also represents case analysis as practiced in law schools more than in political science classes, then we political scientists should be ashamed. Every political science undergraduate would profit from Fisher’s deconstruction of Judge Luttig’s cleverly phrased opinion regarding Jose Padilla. Few readers of that chapter would likely be so dull as to miss that judicial rhetoric often employs argot and chicanery to practice as well as to hide politics. Moreover, the more students learn about Guant√°namo and “enemy combatants,” the more they are likely to realize about judges, executives, legislators, and other politicos. [*767]

The collection is explicitly and rigorously focused for a subset of political science courses concerning judicial behavior and courts. For courses in law schools, other social sciences, or interdisciplinary programs, this anthology will probably serve best as a reserve reading in the library.


© Copyright 2008 by the author, William Haltom.