by Keith J. Bybee (ed). Stanford: Stanford University Press. 2007. 240pp. Cloth. $29.95. ISBN: 9780804756778.
Reviewed by Michael McCann, Department of Political Science, University of Washington. Email: mwmccann [at] u.washington.edu.
Keith Bybee’s edited volume makes a unique contribution to the study of judicial politics. The unifying theme of the book is the tension between the “two faces of judicial power” – one reflected in the principle of judicial independence, the other in concerns that courts must be limited by other branches of government and/or accountable to “the people.” Scholars at Syracuse University conducted the Maxwell Poll to probe how these contradictory commitments play out in public opinion and then organized a conference bringing together scholars, judges, and journalists to discuss their implications for US legal culture. Among the most important implications discussed by the authors is a concern that the citizenry increasingly views courts as “political” or partisan in character, thus undermining the foundations of their legal authority and perhaps the authority of law generally.
The book organizes the essays written for that conference in a simple, sensible format. It begins with a superb introduction by the editor. Bybee outlines the core themes initially by reference to the tension between Hamiltonian arguments for “complete independence of the courts” and the Anti-Federalist fear of a politically insulated judiciary. He then offers a fairly detailed discussion of the Maxwell Poll findings that American citizens tend to confirm both the ideals of judicial independence and the facts of increasing judicial politicization, which is related to a variety of other complexities in opinions about courts and judges, some but not all of which split markedly along partisan lines. One of the more interesting and important dimensions of this complexity concerns the mass media, which is both the routine source of public knowledge about judicial practice and for many a causal force contributing to growing perceptions that judges act on their policy preferences rather than enacting law. “The poll results not only illuminate the contradictory contours of public opinion but also suggest that the public’s beliefs are closely related to the way in which the media covers the courts” (p.2). Hence the volume’s clever title. One virtue of this pithy but substantively rich introduction is that a reader can quickly form solid judgments about whether to continue reading all or parts of the book.
Part 1 includes two scholarly reflections on the arguably increasing public perception that judges “talk law but do politics.” Charles Gardner Geyh’s initial chapter documents the historical rise of efforts to ensure public confidence in the courts by regulating the appearances of judicial impropriety. He notes that concerns about judicial impartiality grew with the emergence of image-based, sound-byte obsessed mass media and their impact in shaping public [*832] perceptions of courts as results-oriented and partisan. The parallels between this trend in mass media and the concurrent development of legal realism among elite jurisprudes goes unexamined in the essay but are worth reflection. In any case, Geyh shows that the ABA responded with the Canons of Judicial Ethics, now enforced in all fifty states, requiring judges to eschew appearances of impropriety and to safeguard against perceptions of partiality. These modes of regulation arguably undercut free speech rights of judges and prevent them from speaking out in the marketplace of ideas so they can in turn be judged. Geyh doubts the regulations will be relaxed and suggests that this may be a good thing.
G. Alan Tarr’s Chapter 2 extends Geyh’s concerns by confronting the “hyper-politicization” (p.53) that has attended state judicial elections. Tarr shows how flirtations with “merit selection” processes at the state level during the 1960s and 1970s have succumbed to an upswing in judicial elections over the last thirty years; 39 states use elections for selecting or reelecting state Supreme Court justices (p.54). Moreover, these judicial electoral campaigns, and the sensationalistic press that follows them, have become increasingly “noisier, nastier, and costlier.” While not all elections fit this image, Tarr suggests that the public perception of a few high profile ugly elections tends to be generalized. “The perception that judicial decisions generally reflect judicial predilections or idiosyncrasy rather than simply the legal merits of the case weakens considerably the rule-of-law argument for judicial independence” (p.67).
Together, these first two essays sound alarms about the declining sense that traditional norms associated with judicial independence and [*833] impartiality are withering. Moreover, “. . . . the genie cannot be put back in the bottle,” notes Tarr (p.69). The only question is how we make the best of a trying situation, which is the subject of the remaining essays.
Part II offers four essays written by sitting judges and together provide something of a reassuring response that, despite politicizing influences of money, public pandering, and media sensationalism, judges can sustain perceptions of integrity, independence, and impartiality. Alabama Supreme Court Justice Harold See leads off with a very thoughtful, subtle, well supported discussion comparing judicial selection processes in the US, focusing on who does the selecting and the restrictions on the appointment. He then assesses the selection methods according to the relative “independence” and “quality” of judging that they generate. See finds that popular election of judges has its upsides as well as downsides; the choice between appointment and election is a matter of “tradeoffs.” He argues that money and organized power of interested parties influence all selection processes, and cannot really be excluded. At least popular elections increase publicity and transparency that might expose undue influence or bias in ways that backroom politics does not.
In Chapter 4, James E. Graves, Jr., a Justice on the Mississippi Supreme Court, tends to agree with See that all judicial selection processes are subject to political influence. But Graves suggests that judicial independence and impartiality are less determined by how judges are selected than how judges choose to play their roles once they don the robes. He offers a substantial reflection on the impact of BROWN v. BOARD OF EDUCATION to illustrate how courts can use the mass media to educate the citizenry in civic virtue. John M. Walker, Jr., Chief Circuit Judge of the US Court of Appeals for the Second Circuit, advances a similar argument in Chapter 5 through this “thoughts on the Roberts and Alito hearings” and the federal judicial selection process generally He agrees with Graves about the responsibility of judges to decide cases through impersonal reasoning, and he argues for a “new partnership” between the media and judges that helps the public understand the distinctive differences between legal reasoning and political preference.
Joanne F. Alper, a Virginia Circuit Court judge, concludes the section with Chapter 6. She goes further than others in underlining that it is imperative for the public to understand what judges actually do, i.e. that judges become effective by displaying intellect, patience, and fairness that reduces their biases or result-oriented inclinations. She draws on her own experience as a judge in Virginia. In that state, judges are selected by legislators in the General Assembly assisted by a Joint Judicial Advisory Committee, a process that facilitates the public campaigning of judges without the financial costs and other downsides of popular election. In short, “proponents of Virginia’s system of legislatively electing judges emphasize that this process maintains judicial independence, ensures that judges rely solely on the law, not politics or popular views, and maintains the public’s high regard for Virginia’s judiciary” (p.144).
Given that Part I lays much blame on the mass media while authors in Part II hold out much hope that judges can more effectively use the media for legal education, Part III provides a fitting forum for journalists to weigh in on the related issues. In Chapter 7 Mark Obbie, a former reporter turned journalism professor, looks at how two leading national newspapers reported on the Supreme Court nomination of Justice Samuel Alito to assess the extent of “results-oriented legal journalism.” The author finds that half of the news accounts displayed the latter tendency and failed to report much that is relevant to law. He thus makes a plea for improved journalism. While his proposed solution is vague, Obbie’s study is full of interesting textual quotations from news coverage; it offers splendid (if missed) opportunities for engaging with Justice Walker’s earlier cheery claim that “the confirmation hearings for . . . Justice Alito were for the large part dignified and conducted with respect for the judiciary and the nominee” (p.128).
Dahlia Lithwick, senior editor and legal writer for Slate.com., examines the quality of legal reporting on the Internet in Chapter 8. Not surprisingly, she observes that the Internet offers a wider array of potential sources of information and perspectives about courts than do conventional news sources. If one looks at most people’s actual usage practices, however, the information sources they tap tend to be quite narrow and limited. The Internet thus can be a great resource for information that facilitates open [*834] dialogue for those willing to invest and work. But it also can debase public understanding and discourse, creating the illusion of reliable information. The essay ends with an optimistic view of the democratic potential of the Internet and, again, an ode to responsible choices. “As is so often true in a democracy, the choice is ours to make” (p.184).
In Chapter 9, Tom Goldstein, another senior reporter and journalism professor, offers a more skeptical view about the prospects for developing better communication between media and courts, or reporters and judges. While things can be improved, he underlines a fundamental “distance” and tension between the message that judges want to communicate and the more disruptive commitment to “exposure” that makes reporters unreliable allies or megaphones for judges’ messages. “Better coverage,” he argues, is not the same as the “more positive coverage” that judges want. The essay draws widely on journalistic experience and anecdotes, and it is a welcome contribution. Finally, the Afterword by Anthony Lewis, the renowned former columnist for The New York Times, suggests that the present balance between contrasting views of courts – as at once impartial and yet political – is likely to yield toward an increasingly more skeptical view that privileges focus on judicial results over reasoning. Like others, he blames the problem more on public misunderstanding or ignorance rather than informed opinion. If there is a silver lining, he concludes, it is Americans’ normative commitment to judicial independence.
Overall, the book is remarkably cohesive in its thematic focus. It is also well organized, generally well written, and largely free of academic jargon. The essays are uneven, as is typical in such volumes. In particular, even my cursory summary of the essays makes clear that there is a palpable tension between the complex institutional analysis of the issues at stake offered by some authors (mostly scholars), on the one hand, and the wispy odes to “responsibility” and moral choice offered by judicial and journalistic professionals, on the other hand. Some readers might complain that the book is seriously lacking in the type of more systematic, rigorous analytical and empirical inquiry that is common in extant scholarly study. But one could also view this as one of the book’s strengths. For one thing, the collection provides unique interpretive insights into the intersubjective worlds shared by the most important producers of legal knowledge in contemporary mass society. The paucity of sophisticated institutional analysis and inclination toward self-regulating, “responsibilizing” responses offered by judges (except for Harold See) and reporters that the book documents exposes the narrow logics of official law talk in action, and these themes are a great starting point for critical discussion in the classroom.
Moreover, the book could provide a great point of departure for engaging with a variety of studies by socio-legal scholars in a course on contemporary courts and politics. For example, it would be interesting to interrogate the alarm expressed by this book about the politicization of high courts in light of John Brigham’s fascinating argument about the institutionalized “cult” of deference to the Supreme Court as final authority (1987). Or, for something very [*835] different methodologically and epistemologically, the work by Jim Gibson and his colleagues (Gibson 2008; Gibson, Caldeira, and Baird 1998) on judicial legitimacy and public opinion would be a fascinating basis for developing further the themes raised by Bybee’s book. Each of these different types of studies offers reason to question whether the legitimacy of courts is fragile. At the same time, it would be interesting to put this book into conversation with research on media coverage of legal practices outside of appellate or high courts. For example, how does media coverage of ordinary civil disputing and the related rhetoric about a “litigation crisis” (see Haltom and McCann 2004) parallel, amplify, or conflict with media coverage of high courts? Or how might popular perceptions of high courts be affected by popular culture – by movies, novels, television, lawyer jokes, and the like (see McCann and Haltom 2008; Sarat, Douglas, and Umphrey 2005; Galanter 2005)? This book does not directly engage these or other relevant literatures, but there is great potential for doing so in the classroom.
Finally, this reviewer found it surprising that nearly all the essays treated the tension between images of judges or courts as either inherently legal or political, impartial or partisan, independent or politically interdependent, as vexing “problems” that needed to be overcome or solved. A dark sense of moralistic anguish and apprehension about the status of judges, courts, and the rule of law shrouds much of the volume. None of the essays embraced the tension as either inescapable or desirable. To his credit, Professor Bybee, the editor, raises this point briefly at the end of his Introduction, which leads me to wish that he had contributed a longer essay of his own. He notes that many socio-legal scholars have convincingly contended that law, or legal ideology, thrives precisely by sustaining such contradictions or tensions (Scheingold 1974; Ewick and Silbey 1998). Such a recognition that wariness and faith, skepticism and trust, can coexist in healthy ways seems somewhat foreign to most essays, except Bybee’s, however. But, again, this omission makes the book a potentially fascinating text for study of how contemporary knowledge about courts is reproduced in public legal discourse and how it matters for politics.
Brigham, John. 1987. THE CULT OF THE COURT. Philadelphia: Temple University Press.
Ewick, Patricia, and Susan S. Silbey. 1998. THE COMMONPLACE OF LAW: STORIES FROM EVERYDAY LIFE. Chicago: University of Chicago Press.
Galanter, Marc. 2005. LOWERING THE BAR: LAWYER JOKES AND LEGAL CULTURE. Madison, WI: University of Wisconsin Press.
Gibson, James L. 2008. “Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and ‘New-Style’ Judicial Campaigns.” AMERICAN POLITICAL SCIENCE REVIEW 102 (#1, February): 59-75. [*836]
Gibson, James L., Gregory A. Caldeira, and Vanessa Baird. 1998. “On the Legitimacy of National High Courts.” AMERICAN POLITICAL SCIENCE REVIEW 92 (#2, June) 343-358.
Haltom, William, and Michael McCann. 2004. DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. Chicago: University of Chicago Press.
McCann, Michael, and William Haltom. 2008. “Ordinary Heroes vs. Fallen Lawyers: Public Interest Litigation in the Movies,” LAW AND SOCIAL INQUIRY. Vol. 33: 4, 1043-1078.
Sarat, Austin, Lawrence Douglas, and Martha Merrill Umphrey (eds). 2005. LAW ON THE SCREEN. Stanford, CA: Stanford University Press.
Scheingold, Stuart S. 1974. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE. New Haven, Ct: Yale University Press.
© Copyright 2009 by the author, Michael McCann.