by Tom S. Clark. New York, NY: Cambridge University Press, 2011. 356 pp. Paper $30.99 ISBN: 9780521135054.
Reviewed by Kirk A. Randazzo, Department of Political Science, University of South Carolina. Email: randazzo [at] mailbox.sc.edu
Often when scholars examine aspects of judicial independence in the United States they focus on particular policy outputs by the Supreme Court and the conditions under which these choices are constrained by other actors or institutions. For example, many studies examine whether legislatures try to overturn court decisions, and whether judges curtail controversial decision-making in anticipation of possible negative responses. In The Limits of Judicial Independence, Tom Clark takes a different approach and offers new perspective on the strategic decision framework.
Professor Clark lays out a very interesting argument – the ‘politics-legitimacy’ paradox – as the theoretical foundation for the book. This paradox claims that “in order to protect its image as a neutral, independent decision-making body, the Court must in fact pay close attention to what will be deemed acceptable by the populace and sometimes yield from any neutral perspective to avoid overstepping the bounds imposed by perceptions of what is legitimate…. In order to guard its image as an apolitical decision-maker, and with it its institutional legitimacy, the Court must engage in deeply political behavior” (p.22).
Clark then proceeds to describe a rich theoretical model, which he calls the ‘Conditional Self-Restraint Model’, surrounding this paradox by focusing on the effects of congressional Court-curbing measures across a range of Supreme Court behaviors. He argues that congressional Court-curbing measures are signals to the Supreme Court of potential public frustration, which may in turn decrease the institutional legitimacy of the Court. To more explicitly state this theoretical argument, he develops a game-theoretic model based on interviews with three Supreme Court justices, ten former clerks, two members of Congress, and seven congressional staffers. This approach is extremely innovative because many formal models are derived without explicit connections to the ‘real world’ – in fact this is the most frequent criticism of game theory/formal modeling. Clark, however, relies on the interviews to help develop the theoretical framework. He then derives a series of comparative statics from the formal model, which are used to generate and empirically test several hypotheses.
I must admit that despite the combination of interviews and formal modeling initially I was skeptical of Clark’s argument. My hesitancy stemmed from the potential leap of faith readers must adopt in order to attribute Court-curbing measures in Congress to changes of behavior among the justices. To a certain degree everyone recognizes and possibly expects a particular amount of discontent with the Court. Justice [*420] Thomas compared these types of protests to individuals who yell at the referees of sporting events, when a call is made over which they disagree. In sum, it seems as if the Court expects a certain level of discontent on a regular basis. Yet, the question as to whether expressions of discontent contribute to behavioral shifts among the justices is harder to explicitly identify. A counter-example to Clark’s argument is the recent debate concerning Terry Schiavo and attempts to prevent the removal of feeding tubes by the state legislature in Florida and Congress. While members of Congress demanded that the Supreme Court grant certiorari and overturn a Florida court decision, and introduced measures to affect the Supreme Court’s jurisdiction, the justices denied certiorari on three separate appeals.
As if sensing this hesitancy, Professor Clark makes a point to acknowledge questions about the ‘seriousness’ of Court-curbing measures. In Chapter Two, as he describes the history of Court-curbing bills introduced in Congress, he states, “a legitimate concern may be voiced that there is not much variation in how ‘far’ these bills go through the legislative process. It is true that most bills never make it out of committee; indeed, most never receive a hearing in committee” (p.48). He then proceeds to state that “Court-curbing bills may be informative even in the absence of significant legislative success” (p.49). As he further articulates in Chapter Three, “I do not assume that the justices believe that Court-curbing is a credible signal about its public support. Rather, in the theoretical analysis below, I ask under what conditions Court-curbing bills can be a credible signal of public discontent with the Court?” (p.71). These conditions include the possibility that Court-curbing is “an elite reaction to public opinion,” or possibly “an effort by political elites to influence public opinion by attacking the Court,” or perhaps “may sometimes be in fact a credible threat by Congress to curtail the Court’s institutional powers” (p.71). He then proceeds to describe these separate conditions, and ultimately, I believe Clark makes a convincing argument that examining these conditions is an empirical question in need of attention and resolution.
Over the next three chapters, Clark, conducts several analyses to determine empirically whether these conditions systematically affect aspects of the Court’s behavior. In Chapter Four he sets out to examine the determinants to Court-curbing legislation to see if the introduction of bills is related to public opinion. More specifically, he develops a novel approach to construct a state-level measure of public opinion. Relying on a technique called multilevel regression with poststratification, he constructs a measure of state-level confidence in the Supreme Court from 1975 through 2006 that is conditioned on individual responses to survey questions, demographic and geographic correlations among respondents, and each state’s demographic breakdown. Using this measure, Clark demonstrates that as public opinion for the Supreme Court decreases both the overall number of Court-curbing proposals and the number of individual bill sponsors increases significantly. Additionally, as the Court becomes more ideologically extreme (in either direction), Clark discovers that “Court-curbing only comes from its ideological adversaries” (p.133). [*421]
Chapter Five takes the next step and examines the extent to which the introduction of Court-curbing measures in Congress systematically affects Court behavior, more specifically, the exercise of judicial review by the justices. Clark begins this chapter by fitting his argument into the broader literature on separation-of-powers and then conducts analyses at two different levels. First, he examines aggregate patterns “by considering the number of laws held unconstitutional by the Supreme Court each year” (p.164). Second, he explores the case level and “examines the probability that the Court strikes down a given law, once it has decided to hear a constitutional challenge to the legislation” (p.165). He examines each level across an extended period of time (1877 to the present) and empirically demonstrates that the justices exercise more judicial restraint as the introduction of Court-curbing legislation increases. Additionally, he explains that “there is considerable evidence that the reaction to Court-curbing is not driven simply by a judicial fear that the legislation will be enacted but rather by an interpretation of those bills as indicators of waning public support for the Court” (p.193).
The final empirical test occurs in Chapter Six, where Clark examines the effects on Court-curbing legislation on the Court’s statutory interpretation. As he explains, “Although statutory decisions may be susceptible to reversal by ordinary legislation, ordinary legislation can generally only reverse a single decision…. Court-curbing on the other hand, can affect judicial decision making across the board, reaching a broad set of cases” (p.209). By examining the ideological directionality of Court decisions from 1953 to the present, Clark demonstrates that, “as more conservative (or liberal) members of Congress engage in Court-curbing attacks on the judiciary, the justices move in a conservative (or liberal) direction (at least in statutory cases)” (p.237). He then relies on the Court’s cases involving mandatory school busing and racial discrimination to illustrate how congressional attacks through Court-curbing affect the justices’ behavior.
In sum, I believe The Limits of Judicial Independence exemplifies good social science research. Professor Clark employs multiple methodologies – including case studies, interviews, formal models, and empirical analyses – to articulate a novel theoretical argument and test its implications across a variety of settings and contexts. This book should interest to students and scholars of judicial politics as well as congressional politics. There is much to gain from reading the book and working through Clark’s meticulous approach.
Copyright 2012 by the Author, Kirk Randazzo.