JUDICIAL POLITICS IN POLARIZED TIMES

Vol. 27 No. 3 (April 2017) 44-46

JUDICIAL POLITICS IN POLARIZED TIMES, by Thomas M. Keck. Chicago: University of Chicago Press, 2014. 352 pp. Cloth $89.00. ISBN: 978-0-226-18238-4. Paper $27.50. ISBN: 978-0-226-18241-4.

Reviewed by William R. Wilkerson, Department of Political Science, SUNY Oneonta. Email: bill.wilkerson@oneonta.edu.

Placing the role of courts, especially the U.S. Supreme Court, in this polarized era of American politics is no easy thing. Thomas Keck tells us that there are three “stories” that seek to explain the role of courts in our political system. The first story is that judges are umpires, impartially deciding cases that come before them. The second story, in direct opposition to the first, is that judges are partisan judicial activists deciding cases based on their personal beliefs unaccountable to the public. The third story, coming primarily from the scholarly community, is that the decisions judges make do not matter that much. As Keck notes, this story asserts, “[I]n the long run, federal judges are unlikely to impose limits on the popular will—either for good or ill….” (p. 4). And state judges are even less likely to thwart the electorate. In this book, Keck sets out to assess these stories by examining four of the most controversial policy areas currently before the courts and the American polity: abortion rights, LGBT rights, affirmative action and gun rights.

Litigation in the four policy areas from 1993 through 2013 is examined in Part I. In selecting issues, he has chosen two areas where litigation has been moved by liberals—abortion rights and LGBT rights—and two by conservatives—affirmative action and gun rights. Keck has taken a notably broad perspective on litigation, focusing on any case intended to move policy goals forward not simply on doctrine in a particular area. He examines three broad strategies that invite litigation: stopping newly created policy changes that they oppose, asking courts to expand rights by striking down existing policy and asking courts to support efforts at democratic change such as initiatives and referenda. For example, he studies not only cases aimed at striking down anti-same sex marriage (SSM) actions such as California’s Proposition 8 on state constitutional grounds, but also litigation aimed at striking down consensual sodomy criminal statutes culminating in LAWRENCE V. TEXAS (2003), and lawsuits seeking to use courts to facilitate initiatives to ban SSM through the ballot in several states where petition requirements were not met. Litigation before the U.S. Supreme Court is noted in detail, but so too is litigation before state high courts and the U.S. Circuit Courts of Appeals. Interest group litigation and private lawsuits are each highlighted throughout and at times we see them working in consort while elsewhere lawsuits are at cross purposes. In taking this broad perspective we see that in each of these four areas litigation is used by advocates on both sides of the political spectrum, underdogs and overdogs, regardless of which party is in control of the executive and legislature on both the federal and state level. It is hard to do justice to the detail and subtlety of these four case studies. They stand alone as a significant scholarly accomplishment.

Part II of the book uses the case studies developed in Part I to evaluate the three stories. As with the case studies, the analyses of these three stories are deep and nuanced, each including a detailed literature review. In Chapter 3 Keck examines whether judges act as umpires. Much attention is focused here on the voting behavior of appellate judges, comparing the voting behavior of Republican and Democrat appointees in the four policy areas over time and by the types of cases. He also compares Court of Appeals voting behavior to voting by U.S. Supreme Court justices and members of the U.S. House of Representatives and the U.S. Senate. Overall, Republican appellate judges voted about evenly for conservative and liberal positions (51.5% liberal), while Democrat voting was heavily skewed toward liberal positions (84.4%). No consistent pattern emerges over time, the percentage point differences between Democrat and Republican judges do not notably change over in the two decades the book examines. It is interesting to note that the percentage point differences between Democrat and Republican support for the liberal position grows during the second terms of the Clinton and Bush presidencies—41.5 and 45.3 respectively—in comparison to the three first terms of Clinton, Bush and Obama with differences of 27.1, 26.9 and 28.0.

To highlight some of Keck’s findings polarization is most pronounced when courts are asked to either stop new policies (39.1) and to overturn existing ones (32.2). In contrast, there is little difference in voting between Republicans and Democrats in cases where courts are asked to support democratic politics (6.1). The differences between Democrat and Republican appeals court judges are significant, but in comparison to Congressional voting, they are modest. Percentage point differences between Democrat and Republican votes in Congress during this same period roughly double those for federal appellate judges: 65.2 in the House, and 62.7 in the Senate. (The U.S. Supreme Court is 36.6, much closer to Court of appeals judges than Congress.) For each institution, partisan differences are highest for affirmative action and lowest for gun rights. Overall, judges show some capacity to act as umpires, but as Keck notes, there are "troubling signs of deterioration” (p. 162).

In assessing whether judges are tyrants, Keck compares decisions made by the federal courts and state courts of last resort with available public opinion polling data on the policy issue. As with the discussion of judges as umpires, the data is presented in clear detail. In total he finds 158 rights protecting decisions covering 33 distinct policies in the four policy areas. Keck’s assessment is that the data show that courts do at times act against public opinion, but on balance, the counter-majoritarian decisions are modest in scope. Judges are not tyrants. Public support is lacking in over 50 decisions in 17 policy areas. (The majority of the decisions are in 11 areas where there is public support for decisions while a smattering of decisions in five areas were unpopular at the time, but public support has since changed in favor of the court decisions.) Keck urges that these numbers overstate the counter-majoritarian problem. For example, in five of these areas—a Florida prohibition on doctors discussing gun safety with patients is one such area—no significant public opinion data exists. And in other areas, the scope of decisions has been narrow. Most have been state high court decisions, at times covering local policies, such as domestic partnership policies in cities and towns.

Finally, are court decisions irrelevant? In 1991 Gerald Rosenberg described decisions of the U.S. Supreme Court as a “hollow hope.” On balance, Rosenberg (1991) argues that at best court decisions in controversial policy areas make little difference and at times they can actually do harm to the policies they seek to support through substantial policy backlash. Over the last quarter century, the efficacy of decisions has been one of the major debates in the law and courts community. Here, Keck seeks to expand the boundaries of established judicial impact research. He looks at four types of responses to court decisions: resistance, compliance, compromise and innovation. Taken together, “the lesson of these four sets of reactions to controversial judicial decisions is that courts are inextricably entwined with the rest of the policy process” (p. 203). The policy process always involves multiple institutions, often across different levels of government. Keck finds that courts have had a significant impact in three of the four areas in the 20 years he studies. Only in the area of gun rights has the impact of courts been modest. Decisions since publication such as BURWELL V. HOBBY LOBBY STORES (2014) and OBERGEFELL V. HODGES (2015) as well as numerous new state laws on both sides of the gun rights issue provide more support to Keck’s conclusions.

Overall, this book is an impressive work of scholarship. Keck weaves together the stories of four highly contested policy areas seeking to answer some of the most hotly contested questions for law and courts scholars. His research and analysis are significant. While the answers may not be definitive, Keck provides notably well-argued and well-documented findings that place each of the stories he examines in a new light. Scholars on both sides of these questions should take notice. This book is strongly recommended to all students of the U.S. Supreme Court as well as law and courts scholars more generally. Graduate students will benefit from its rich literature reviews as well as the deep dives into the four policy areas. Well written, the book is accessible for a broad range of readers. While the density of the argument of the case studies might challenge some undergraduates the policy areas will be of interest.

REFERENCES

Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

CASE REFERENCES

BURWELL V. HOBBY LOBBY STORES. 2014. 273 U.S. ___.

LAWRENCE V. TEXAS. 2003. 539 U.S. 558.

OBERGEFELL V. HODGES. 2015. 576 U.S. ___.



© Copyright 2017 by author, William R. Wilkerson.