This book focuses on a narrow but important issue, but it is written in a way that allows it to serve as a fine introduction to the politics of the U.S. Supreme Court and judicial politics broadly. The primary focus of the book is on the Supreme Court’s exercise of the power of judicial review over acts of Congress since the mid-twentieth century. The primary claim, which is explored with creativity and depth, is that the policy preferences of the current Congress impose a significant constraint on the willingness of the Court to invalidate federal statutes that come up for review.
Anna Harvey begins her analysis by setting up a puzzle that is very particular but illuminates a broader pattern of judicial behavior (and scholarly controversy). In brief, Court watchers often distinguish between an “early” and a “late” Rehnquist Court. The early Rehnquist Court, dating from roughly the mid-1980s when William Rehnquist assumed the office of chief justice to the mid-1990s, is often portrayed as surprisingly moderate, with the majority preserving the right to abortion and upholding the independent counsel law. The late Rehnquist Court, extending from the mid-1990s to Rehnquist’s death in 2005, was more conservative and more “activist,” featuring such controversial decisions as the Court’s intervention in the 2000 presidential election and the invalidation of a provision of the Violence Against Women Act. Where qualitative observers and lawyers have seen sharp discontinuities within the Rehnquist era, quantitative judicial scholars have seen an uninterrupted period of judicial conservatism. Why the gap between the qualitative and the quantitative analyses? And why would the late Rehnquist Court be any more conservative than the early Rehnquist Court, given their similar compositions?
In offering a solution to this puzzle, Harvey also suggests that we reconsider currently dominant assumptions about judicial behavior. In short, she thinks the qualitative scholars are right that the early Rehnquist Court was more moderate and less activist than the late Rehnquist Court, and she thinks that most quantitative scholars have been wrong to nearly exclusively emphasize the importance of judicial preferences on judicial outcomes and to deemphasize the influence of other political actors on the Court. In order to advance this argument, she begins with a critique of the widely used database of Supreme Court decisions assembled by Harold Spaeth and offers an alternative measure of the ideological direction of judicial decisions. Where the Supreme Court database relies on what she characterizes as a “subjective” coding of the ideological direction of particular policy decisions, Harvey simply codes whether the Court is striking down a statute passed by a Democratic or a Republican Congress in judicial review cases. By this measure, the late Rehnquist Court appears notably more conservative. With this new dependent variable in place, she then reexamines possible independent variables and determines that shifts in the median member of the House of Representatives affects judicial outcomes. Judicial preferences appear to be constrained by congressional preferences in the House of Representatives, and when the Republicans took over the House in the 1994 elections then the constraints came off the conservative majority on the Court and they could express their true preferences. Earlier Democratic majorities in the House had limited how conservative the Rehnquist Court could be (and, incidentally, the relatively conservative Democratic majorities of the 1950s and early 1960s limited how liberal the early Warren Court could be—the celebrated decisions of the late Warren Court were conditional not only on the appointment of liberal justices but also on the election of more liberal House members in the 1960s and early 1970s). This analysis also sets the stage for Harvey to explore some provocative hypotheses about the Court’s shrinking docket since the 1980s, the likely trajectory of the Roberts Court, and comparative contributions of independent judiciaries and judicial review to the realization of civil liberties.
There is much to admire here. The book is particularly careful and lucid in setting out not only its own argument but also in providing the larger context of the analysis. Any reader can pick up the book and easily follow along with the explanation of what is being contested, what is at stake, and how the empirical analysis is done. As Harvey emphasizes, the issues here are indeed important ones of broad political interest. Accurately describing and accounting for how the Court exercises judicial review is of as much (or more) interest to journalists, lawyers, and politicians as it is to political scientists. Moreover, the political bottom line matters. If Harvey is right, then if you don’t like what the justices are doing, you should blame not only the presidents and senators who put them on the bench but also the House members who implicitly empower them (and the voters who elected them). Perhaps the Supreme Court is less independent and more politically constrained, even in its day-to-day decision-making, than has generally been assumed.
As might be expected with such an ambitious claim, there is room for argument. The statistical analysis suggests that the ideal point of the median House member matters, but not the ideal point of other political actors such as presidents or senators (or even the direction of public opinion). The finding appears to be fairly persistent (and the effect potentially large), but the theoretical explanation is weak (Harvey points to House’s constitutional power to impeach justices and initiate spending bills as the key deterrent to the justices). Despite pointing to the more qualitative assessments of the Court to suggest that maybe there are important differences before and after the 1994 elections, she paints with a very broad brush, ignoring the more detailed analysis that legal scholars would offer. This not only leads her to collapse a distinction that many observers make between a pre- and post-2000 Rehnquist Court and to contend that the only salient difference between the Gun Free School Zones Act (which the Court struck down) and the Prison Litigation Reform Act (which the Court upheld) was the partisan identity of the Congress that passed the two statutes, but also leads her to collapse the potential differences between qualitative and quantitative analyses of the Rehnquist Court into a disagreement with how moderate or conservative the Court was, and thereby obscuring the possibility that qualitative and quantitative scholars are simply focused on different things when one looks at highly salient and consequential decisions and the other looks at aggregate ideal point estimates. One might want a more thorough discussion of the potential problems with the Supreme Court database’s approach to coding the ideological direction of decisions and standard analyses of individual justice votes rather than case outcomes before setting them aside, or a more detailed consideration of the complexities of coding the ideological orientation of a judicial decision based simply on the partisan composition of the Congress that adopted the overall statute challenged in a case.
Harvey has laid down an important challenge to judicial scholars. The book should force some reconsideration not only of our existing assumptions about judicial behavior, but also of how we go about the task of examining judicial behavior. The book also offers an interesting effort to bring qualitative and quantitative work about the Court into dialogue with one another. Even among those who have argued that the Supreme Court and the exercise of judicial review are politically conditioned and constrained, Harvey offers a distinctive thesis and analysis that could potentially shift the terms of the debate. Her work deserves, and will hopefully receive, serious attention.
