by Kevin T. McGuire (ed). New York, NY: Routledge. 2012. 338pp. Hardback $145.00. ISBN 978-0-415-89331-2. Paperback $47.95. 978-0-415-89332-9
Reviewed by Nancy Scherer, Jane Bishop ’51 Associate Professor of Political Science, Wellesley College.
Kevin McGuire’s new edited volume on judicial politics is a terrific book. While many in our field will already be familiar with the research chosen for this compendium, I see this book as a good fit in undergraduate and graduate classes on law, courts and politics.
McGuire’s motivation for the book stems from his observation, shared by most scholars in our field, that there is a huge gap between the public’s interest in law (e.g., in books and TV shows dealing with law) and their knowledge of how our courts actually function. I would say that this gap is becoming even more troubling in today’s political environment because we seem to be in the midst of a political period where the Supreme Court has assigned itself an activist role in the shaping of public policy. By this I mean that an unelected conservative Court has, in the past decade, overturned a slew of progressive laws passed by both state and federal elected branches (e.g., National Federation of Independent Business v. Sebelius (2012)(majority rejected Congress’ authority to pass national health care legislation under the Commerce Clause); Parents Involved in Community Schools v. Seattle School District (2007); (majority overturned the decisions of two elected school boards to maintain desegregation of their schools through careful districting using race as a factor); Citizens United v. Federal Elections Commission (2010) (majority overturned federal legislation regulating federal campaign contributions)). In the 2012 term, the Court seems poised to do so again, as it reconsiders the power of state governments to use race as a factor in admissions to public universities. Moreover, some scholars fear that the Court could go so far as to undo much of the New Deal and Great Society programs that collectively act as a safety net for those in need. No doubt history will look back upon the Rehnquist and Roberts Courts as a period of “Lochner Redux.” What we, as scholars, can do is try to debunk the myth of courts as neutral political actors. I believe McGuire’s book makes a tremendous contribution towards that end.
Before even beginning to read the book, what immediately struck me was that McGuire had tapped many scholars who represent, what I would call, the new generation of leaders in our field, including McGuire himself. This is important because it allows the reader to get fresh perspectives on longstanding questions on the relationship between courts and politics. At the same time, these contributions do an excellent job of giving the readers the background information they need with respect to the seminal works on which they build.
What I particularly liked about the edited volume is that it is inclusive of all types [*163] of research in our field. It covers a wide range of substantive issues and methodological approaches. Substantively, the book is organized into five sections, each containing between two to five chapters, organized along a logical continuum. Together, these sections represent current issues in our field from a judge’s “birth” to final implementation of her decisions.. McGuire begins with the selection of judges (Section I), then turns to the internal workings of both trial (Section II) and appellate (Section III) courts. Section IV addresses external constraints on the courts’ decision-making (e.g., inter-branch checks and balances), and the last section tackles post-decision issues of implementation and impact of legal decisions.
Thankfully, the volume does not focus only on the Supreme Court, as we know that state courts and lower federal courts do the real nuts and bolts work in our judicial system. However, no doubt because I write on this subject, I think a chapter on the lower federal court appointment process should have been included in the “Selecting Judges” section. As many scholars have demonstrated in recent years, there are some unique features about the lower federal court appointment process that deserve attention.
The book is also methodologically diverse. There are articles that use quantitative methods and articles using qualitative evidence. For example, the Black and Owens article, “Supreme Court Agenda Setting: Policy Uncertainty and Legal Considerations” uses logit while Unah’s, “Race and Death Sentencing” employs probit. The qualitative research is also first-rate. For example, Cann, Bonneau and Boyea, in “Campaign Contributions and Judicial Decisions in Partisan and Nonpartisan Elections,” use the case study method and Bailey and Maltzman, in “Goldilocks and the Supreme Court: Understanding the Relationship between the Supreme Court, the President and the Congress,” provide a thorough description of prior research on the Court.
Finally, the book exposes readers to many of the sub-fields of research in the field of law and politics. Specifically, I refer to the book’s inclusion of research on behavior (e.g., Hettinger and Lindquist, “Decision Making in the U.S. Courts of Appeals: The Determinants of Reversal on Appeal” and Benesh and Martinek, “Lower Court Compliance with Precedent”); institutions (Bailey and Maltzman); social movements (Haltom and McCann, “Under-Estimating and Over-Estimating Litigation: How Activist Plaintiffs may Advance their Causes Even as they Lose their Cases”); historical development (Johnson, Spriggs and Wahlbeck, “The Origin and Development of Stare Decisis at the U.S. Supreme Court”); and legal theory (Sander, “Why Strict Scrutiny Requires Transparency: The Practical Effects of Bakke, Gratz and Grutter”).
Pedagogically, because of the range of subjects and methods, I see this book as one appropriate for a first-year graduate course or a high-level undergraduate course in judicial politics. A professor could use [*164] the book to expose students to the substantive issues covered in the edited volume, collectively a book about the intersection of law and politics. But, at the same time, a professor could use the articles to underscore the many ways to design research, create models, collect data and analyze data.
While the authors have written on these subjects before, the contributions here are not simply republished articles. But, their contributions are not simply republished in the edited volume. Instead, the authors’ re-worked their articles so that they are quite accessible to audiences who know little about the field of law and politics. To this end, all of the authors make good use of descriptive tables, charts and graphs to simplify their findings. This stands in contrast to today’s top journal articles in our field, which are often too technically complex for students just starting out in the field.
In sum, I highly recommend McGuire’s edited volume. It covers the predominant substantive, methodological and theoretical approaches used in the study of judicial politics. The authors make their research accessible for undergraduate, graduate students and law students alike. And, for me, I have already used the book when I need a quick refresher on a particular subject in our field.
Citizens United v. Federal Elections Commission 558 U.S. 310 (2010).
National Federation of Independent Business v. Sebelius 567 U.S. ___ (2012).
Parents Involved in Community Schools v. Seattle School District 551 U.S. 701 (2007).
Copyright 2013 by the Author, Nancy Scherer.