by Richard L. Pacelle, Jr., Brett W. Curry, and Bryan W. Marshall. New York: Cambridge University Press, 2011. 278pp. Paper $27.99. ISBN: 9780521717717.
Reviewed by Charles C. Turner, Department of Political Science, California State University, Chico. Email: ccturner [at] csuchico.edu.
In Decision Making by the Modern Supreme Court presents a broad look at the factors underlying the U.S. Supreme Court’s corpus of decisions for the period 1954 (using Brown v. Board of Education as a starting point) to 2000. The authors should be commended for attempting a ‘Grand Unified Theory’ of sorts – one that addresses and integrates the leading theories of judicial decision making. Although that theory itself is not an unqualified success, there is much to recommend the text. It works well as both a broad introduction to the leading theories of judicial decision making and as an empirical test of ideas the authors develop.
Pacelle, Curry, and Marshall begin their outline of the Modern Court by making a case for Brown as the beginning of a new era. Their careful approach to history and the development of ideas foreshadows the effective approach of using narrative to describe issue evolution they will take later in the book. From this beginning, they go on to discuss the main theoretical constructs scholars have developed for explaining why justices decide the way they do. The authors cover a wide swath of scholarship, framing the discussion into three familiar categories of models: attitudinal, legal, and strategic. In addition to serving as a useful literature review, this part of the text also lays the groundwork for the central argument that follows.
The authors’ theory posits something many scholars of judicial politics probably believe: rather than one camp getting it right, the three leading attempts to account for judicial decision making are all somewhat right. The key is in knowing the specific circumstances in which one model should move to the forefront. The authors offer a typology based on the grounds for the decision (statutory or constitutional) and the salience of the issue (relatively high or low). They posit that in highly salient (that is, civil rights and civil liberties), constitutional cases, the attitudinal model will offer the best explanations. On the other hand, less salient (economic), statutory cases are the ones most likely to be controlled by precedent, as the legal model would predict.
It is in the other two quadrants where strategic variables (defined here as deference to the coordinate branches) should be most apparent. Civil rights and civil liberties statutory cases will reveal deference from the justices based on the fear of being trumped by legislative enactments that negate the Court decision. The Court will respect the sitting president’s position and congressional medians in constitutional, economic cases in order to avoid institutional punishments (such as jurisdictional limits or impeachment).
The book devotes a chapter to each of these four claims, with somewhat mixed results. The authors find strong support for the attitudinal variables in constitutional civil rights and liberties cases. And they make their strongest case for the importance of a legal model when addressing statutory economic cases. In this latter group of cases, both quantitative and qualitative measures seem to support an argument that justices use precedent to reconcile conflict between the Circuits. As these economic cases often get left out of scholarly analyses – or produce results that go unexamined – the authors here must be credited for their effort to advance a theory that explains decision making in non-salient cases.
In the two other parts of their typology – statutory rights and liberties cases, and constitutional economic ones – the authors make a case for the strategic model in addition to attitudinal and legal factors. Support for the strategic model is not evident in the small universe (N = 235) of economic cases. On the other hand, the cases involving civil rights and liberties statutes offer the broadest support for the authors’ integrated model. In particular, Pacelle, Curry, and Marshall make a persuasive case for the Court’s consideration of presidential preferences and the likely policy positions of the House of Representatives.
The strongest elements of the text lie in the breadth and scale of its arguments and the care with which the authors explain the evolution of precedent in several areas of the law. Indeed, through this story-telling approach to issue evolution, the authors are able to transform what might otherwise have been rather dry empirical chapters into engaging and very readable histories. Though their focus on majority opinions rather than individual decisions sometimes makes for an odd fit with the book’s theoretical arguments, these narratives offer an invaluable look at the complexity with which precedent develops over time.
While there are many successful elements to the text, there were also a couple of disappointments (at least for this reader). For one, the empirical tests do not always clearly resolve conflicts between models. For example, attitudinal models do not make the naïve claim that justices do not cite precedent, particularly on-point precedent. So, while it is helpful to see the significance of various models, the statistical results do not necessarily resolve some long-standing differences. To be sure, such resolution may not be tenable in any event.
Further, the authors’ analysis of strategic variables is not always consistent. Though the narrative that justices may alter their behavior out of fear of reprisal from Congress is logical, the authors sometimes conclude (as in Chapters 4 and 6) that the data support the strategic model when only one chamber’s ideological median exerts a significant influence. Given that there are no policy or punishment responses that one chamber can invoke without the other, this may be an overly generous conclusion. It may also be the case that operationalizing the strategic variables as the median members of Congress both overestimates the certainty of the justices’ knowledge about those chambers, while at the same time underestimating the uncertainty of future policy windows. For example, almost any decision made in a presidential election year likely requires highly unreliable guesswork regarding future congressional medians and presidential preferences.
On the whole, Decision Making by the Modern Supreme Court offers a refreshingly broad look at the legal landscape of the latter half of the Twentieth Century. The book will offer graduate students and those new to the theories about how judges decide an excellent primer, as well as an in-depth discussion of how many key issues have evolved in the courts. It should also inspire future scholars to continue exploring ways to integrate models of decision making – perhaps beyond the range of the data presented here, or through employing different measurements. To all readers it presents some serious tests for leading models in this field. By pitting key variables against each other and by making efforts to explain the nuances of decision making, the authors help us better understand when and under what conditions the Supreme Court is likely to be driven by various influences. Though it does not, of course, offer the final word on this subject, it advances the conversation in a meaningful way. And for that it deserves our attention.
Brown v. Board of Education 347 U.S. 483 (1954).
© Copyright 2012 by the author, Charles C. Turner.