Of Time and Judicial Behavior: United States Supreme Court Agenda-Setting and Decision-Making, 1888–1997.

By Drew Noble Lanier. Selinsgrove, PA: Susquehanna University Press, 2003. 280p. $49.50.

Drew Lanier's first book offers the most comprehensive quantitative look at the macrohistorical development of the Supreme Court to date. The book's structure is straightforward: An introductory overview is followed in Chapter 2 by a methodical review of the Court's personnel and doctrinal development from the beginning of the Fuller Court (1888–1910) to the end of the Stone Court (1941–46). Next come a series of thorough, quantitative descriptions of the change in the Court's agenda (Chapter 3), opinion writing (Chapter 4), and decision making (Chapter 5), all based on a monumental data-collection effort undertaken at the University of North Texas during the latter part of the twentieth century. While they are largely descriptive, Lanier offers both informed speculation for the patterns he observes, as well as continual comparisons with previous work on the period (with which his own analyses largely agree).

Chapter 6 is the analytical heart of the book, first offering and then empirically analyzing a series of hypotheses about the determinants of the Court's aggregate liberalism in three broad areas (economic cases, civil rights and liberties, and judicial power) over the period under scrutiny. Methodologically, the analysis relies on fractional cointegration in an error-correction model framework, correctly noting (and empirically confirming) the likelihood of fractional dynamics in series as heterogeneously aggregated as these three. As one would likely suspect, given the relatively slow change in the Court's membership and agenda, all three series exhibit both long-memory characteristics and relatively slow equilibration following “shocks.” But while the internal dynamics of the trends studied are of some interest, his findings with respect to the proximate causes of those changes are, frankly, disappointing. A slight increase in the Court's economic liberalism followed the onset of the Great Depression, and a somewhat larger tendency to rule liberally in civil rights and liberties cases occurs as a function of presidential liberalism; few other of Lanier's hypotheses are borne out by the data.

By far the book's most significant contribution is the wealth of data it offers. Lanier has done us all the favor of reproducing in detail every series he analyzes in Chapters 3 to 6, thus providing the most finely grained aggregate-level data on the Court's activities available to date. Even experienced observers of the Court will likely find something new in the myriad plots of the various aspects he presents—I, for one, was more than a little shocked to note the significant part of the Court's agenda made up of criminal cases during the latter part of the nineteenth century. And while the book's analyses extend to the late 1990s, the true emphasis (and strength) is its detailed coverage of the Court during the period from 1888 to 1946, a span Lanier correctly asserts has received woefully inadequate attention by comparison to more recent times.

Of course, along with its assets, Of Time and Judicial Behavior also has its liabilities. Much of the analyses in the descriptive chapters are, in fact, descriptive to a fault: Rather than engaging in any integrative discussion, the text merely mirrors the data. To the extent that the author does go beyond the data to address causal mechanisms there, the analyses often come across as somewhat ad hoc (or perhaps post hoc). Relatedly, I would also like to have seen a greater degree of integration across the various chapters—for example, a discussion of the relationship among the Court's agenda, voting, and opinion-writing activities, rather than simply separate analyses of the three. There are also stylistic issues: Both the historical overview of the Courts in Chapter 2 and the chapter on agenda setting often seem formulaic, if not quite pedantic, the latter particularly so in its comparisons to earlier work, such as Richard Pacelle's (1991) The Transformation of the Supreme Court's Agenda.

But probably the biggest potential criticism of the book is theoretical, specifically, the mismatch between the theoretical constructs brought to bear and the modus operandi of the investigation. In brief, Lanier is too reliant on the all-too-familiar (and, to my mind, theoretically impoverished) triumvirate of legal, attitudinal, and strategic perspectives on individual-level judicial decision making. Leaving aside the oversimplification, lack of subtlety, and general intellectual myopia such an approach demands of its adherents, the microlevel perspective for which that set of constructs was developed is of correspondingly less use in a macrolevel study such as Lanier's. This is not to undercut the importance of understanding the behavioral underpinnings of long-term historical change, but rather simply to note that such perspectives cannot be the sole theoretical basis for an explanation of such change. What is needed in addition is to integrate, in a nuanced, dynamic way, the interplay of individual and systemic factors, including (and perhaps most important) the influence of the latter on the former. To what extent, for example, did the contentious turn-of-the-century politics of the Fuller Court (including, for example, Harlan's dissent in Plessy v. Ferguson) influence the views on judicial comity of a young Columbia law professor named Harlan Stone?

Accomplishing such a study would be no mean feat, and it is unfair to criticize Lanier for realizing only part of that goal. In the end, Of Time and Judicial Behavior moves us substantially toward that ideal, and for that, the book and its author deserve praise.

(The opinions expressed herein are those of the author, and do nor reflect those of the National Science Foundation or of the United States government.)