by Tara W. Stricko-Neubauer. Berlin: Verlag Dr. Müller. 2008. 164pp. Paperback. $89.00/€68.00. ISBN: 9783836437271.
Reviewed by C. Scott Peters, Department of Political Science, University of Northern Iowa. Email: scott.peters [at] uni.edu.
In JUDICIAL REVIEW IN STATE SUPREME COURTS (2002), Laura Langer examined how legislatures and governors influence the exercise of judicial review on state supreme courts. Judges, Langer hypothesized, have certain “safety zones” where they can be comfortable making decisions consistent with their own policy preferences without fearing retaliation from the other branches. These safety zones are shaped by institutional rules and procedures that guard judicial independence – length of term, for example, or method of retention. They are also shaped by the preferences of the actors within the other branches and by the likelihood that those actors care enough about a particular issue to engage in retribution against the court’s decision. Based on these assumptions, Langer expected, and found, that judges are more cautious in acting upon their policy preferences in areas of law most important to state legislators, and in political systems with rules that make retribution more likely.
Tara W. Stricko-Neubauer’s STATE HIGH COURT JUDGES: INSTITUTIONAL AND ENVIRONMENTAL CONSTRAINT attempts to add to this basic model by introducing another set of factors that shape judges’ safety zones: the preferences of the public, especially where judges are retained by election. The book’s focus on such issues is welcome, and it introduces a way to apply Langer’s theoretical and methodological insights to aid in the examination of the impact of selection and retention systems on state court decision-making. Ultimately, however, the work suffers from an overall lack of clarity in theory-building and hypothesis generation that limits its contributions to the literature.
Stricko-Neubauer hews closely to Langer’s theoretical grounding and research design, adding one crucial element: the influence of mass preferences. As she explains, Langer tended to assume that mass preferences will be expressed through the views of other elite actors, especially legislators and governors. But, “[t]here are many opportunities for the mass public to express their policy preferences directly and force judges to care how the mass public perceives their decisions, and adjust their rulings accordingly” (p.31). Chief among these are selection and retention systems. Much like Langer, she expects the judges to behave differently depending on whether they may face reprisals from the other branches. But she also expects them to consider the possibility of reprisals from the electorate. She tests her expectations using cases across areas of law with differing levels of salience to the public and to elites. She hypothesizes that the death penalty and social issues (abortion, [*510] right to die, gay rights and church-state issues) will be salient to the public as well as to elites in the other branches, while electoral law will be salient only to elites. Finally, she expects neither elites nor the public to find welfare law to be salient, setting up a sort of control where she expects that judges will not be constrained by the public or the other branches. Estimating two-stage selection models that explain the court’s decision to take a case as well as the individual justices’ votes on the merits, she finds, like Langer, that judges are constrained by separation of powers issues. She also finds that when elites (governors or legislators) have power over retention, judges are constrained in their decision-making in electoral law and social issues. She further finds that judges are constrained by the electorate’s preferences in cases dealing with welfare issues, an area where she did not expect to find any such relationship. And, in a major departure from previous research, she reports no connection between public preferences and death penalty decisions. The book ends with two brief case studies of reprisals for court decisions in death penalty and gay marriage cases. The case studies add some qualitative detail to the work, but follow no particular research design and test no specific hypotheses.
The book would benefit from a more coherent theoretical framework that clearly presents expectations and places them within a particular body of literature. Its theoretical underpinnings clearly fall within the broad realm of neo-institutionalism, and while it is clear that the author is attempting to address what she sees as an oversight in Langer’s models, it is never clear what important unanswered or unaddressed question within this body of literature will be answered by doing so. Put another way, Stricko-Neubauer needs to explain what she thinks her approach will tell us about the influence of electoral sanction on judicial decision-making that we do not already know from the past twenty years of research spearheaded by people like Paul Brace and Melinda Gann Hall.
Moreover, several of the author’s findings confound her expectations, but the book does not offer very satisfactory explanations for them. Most significantly, Stricko-Neubauer finds that judicial decision-making on the death penalty was not constrained by elite or mass preferences. Given the rich body of research by Melinda Gann Hall and Paul Brace, among others, that has centered on judicial decision-making in capital cases, this is a major deviation from the literature that is not satisfactorily addressed here. Another example comes in her finding that a judge’s ideological distance from the electorate constrains decisions in election law cases where judges are elected in partisan elections. This was an area of law where she did not expect judges to be subject to major constraint by mass or elite forces, but she offers no real satisfactory explanation for why the theory failed or how it might need to be adjusted.
Some issues of operationalization are also less than clear, and at least some of them belie the work’s deeper theoretical deficiencies. Too often, Stricko-Neubauer fails to generate the kinds of hypotheses that could help her test what she is really interested in. Perhaps the best example comes in the measurement [*511] of state procedures for amending their constitutions. This is of theoretical importance in the separation of powers game envisioned here because justices are assumed to be less constrained in overturning laws when their exercise of judicial review is most costly. First, there is some confusion about how the variable is actually measured. Stricko-Neubauer includes a measure in her models indicating whether states have “difficult” amendment procedures, but it is not clear what constitutes difficult procedures. Early in the book (p.26), and again during the operationalization section of Chapter Three, she suggests that the key is whether a state requires only legislative approval versus also requiring mass approval. But in Table 2.2, she indicates that a difficult procedure is one where a supermajority is required in the legislature and public approval is also required; an easy procedure is described here as “requiring the approval of two legislative sessions” (p.27). Thus, both Iowa and Massachusetts, which require the approval of two legislative sessions as well as approval by the electorate, are categorized as “easy.”
But what matters here – and what should have been measured – is not only how “easy” or “difficult” amendment procedures are from a legislative perspective, but how much power the public has in the process. More attention in the theory-building stage to her central research question – the ability of the public to constrain judges’ use of judicial review – would have led to specific hypotheses regarding how institutional rules that include the public affect judges’ safety zones. Of particular import might be whether the public can amend the constitution through initiative, for example. The implications of this shortcoming can be seen when one looks at recent events pertaining to gay marriage in California and Iowa. In each state, the high court declared void laws defining marriage as between a man and a woman. In California, voters quickly overrode the decision through initiative. In Iowa, the rules for amending the constitution, coupled with Democratic control of the statehouse, have assured that any amendment to overturn the court’s decision will not happen within the next two years. This complicated interaction between institutional rules and public preferences is exactly what Stricko-Neubauer is interested in, but she does not fully explore the implications of her theory or generate the hypotheses necessary to find those answers.
Despite these weaknesses, Stricko-Neubauer has presented a framework that could form the basis for future research along these lines. This book was based on the author’s dissertation, and it is probably true that most dissertations (this reviewer’s included) are not ready for publication, whether as a book or as one or more articles, without considerable revision or rethinking. That the research has already been published in this form, however, should not prevent the author from further exploring the implications of the public sanction on judges’ safety zones. Future work should zero in on the specific theoretical and empirical contributions that this approach can add to the larger body of literature and should leverage the theory to produce specific hypotheses that fully test the implications of the theory. [*512]
Langer, Laura. 2002. JUDICIAL REVIEW IN STATE SUPREME COURTS: A COMPARATIVE STUDY. Albany: State University of New York Press.
© Copyright 2009 by the author, C. Scott Peters.