In this book, Thomas Keck examines litigation and court decisions on four sets of policy issues in the courts: regulation of abortion, questions related to sexual orientation, regulation of guns, and affirmative action. He discusses and analyzes several hundred cases decided between 1993 and 2013 by state supreme courts, the U.S. Supreme Court, and (in the largest number) federal courts of appeals. As the book’s title indicates, its analyses of the four sets of issues are put in the context of partisan and ideological polarization, which have had powerful effects on governing and political activity in the current era.

In part I of the book, Keck describes litigation and judicial responses to that litigation on the four sets of issues. He puts the wide array of cases in order by distinguishing among three types of litigation: responses to new legislation or voter-initiated policies that restrict rights favored by the litigants, responses to long-standing policies that restrict those rights, and action to reinforce efforts to change policy in other arenas. An example of the last category is “litigation designed to enforce policy victories previously won via electoral and legislative channels” (p. 12). Keck documents that both conservative and liberal groups now bring cases whenever they see it as advantageous, so judges face a great deal of policy-oriented litigation.

In part II, he uses the court decisions that he identified on the four sets of issues to probe the validity of three “stories” about courts. One story is that judges are neutrals who simply decide cases according to the law. As Keck notes (p. 1), the most famous recent example of that story is Chief Justice John Roberts’s assertion at his confirmation hearings that “judges are like umpires”. The second story is that judges are “unaccountable judicial activists” (p. 3), enthusiastically overriding policies of the other branches on the basis of their own conceptions of good policy.

The third story is the view of some scholars that “courts are relatively weak and inconsequential” (p. 3). One component of this story concerns the determinants of judges’ choices. In this account, which is largely the opposite of the second story, judges are unlikely to diverge from the policy views that prevail in the general public because they typically share those views. The other component concerns the impact of court decisions: when courts do act contrary to prevailing views in society, their decisions are likely to be overturned or to be met with non-compliance.

In assessing these stories, Keck emphasizes some themes that emerge from his inquiries. Regarding the first story of neutral judges, he focuses on the extent to which Republican and Democratic appointees on the federal courts of appeals differ in their responses to cases involving the four issues. Not surprisingly, he finds a substantial difference between the two groups in liberal-conservative votes: Republican appointees differed from Democratic appointees by 33 percentage points in their proportions of votes for conservative positions on the four sets of issues taken together. However, the differences were relatively small (13 percentage points) on guns.

Keck then takes the excellent step of comparing voting in the courts of appeals with voting on the same four issues in Congress, and he finds that the differences between decision makers from the two parties are substantially greater in Congress. He examines patterns in decisions to show how institutional attributes of the courts of appeals, such as a willingness to follow relevant Supreme Court doctrine, limit the level of partisan voting. Some caution is needed in comparing judicial and congressional votes, but Keck’s comparison is quite meaningful. This is an innovative and informative analysis.

In order to examine the second story of judges as activists, Keck closely studies survey results to determine the relationship between public opinion and court decisions that invalidated government policies, and primarily policies enacted by states. Taking into account complications such as trends in public opinion, he concludes that in only a few instances have such decisions “thwarted the national political will” (p. 196). In his analysis of the relationship between court decisions and public opinion, he arguably leans too far toward reconciling them with each other. But he makes a good case for his conclusions. Further, his detailed presentation and discussion of the relevant survey evidence leave readers with considerable room to reach their own judgments.

On the third story of relatively weak courts, Keck documents the highly varied responses of other policy makers to court decisions on the four issues. Alongside three categories of response that relate to degrees of compliance with decisions, Keck presents a category called “innovation.” This category refers to decisions as spurs for the adoption of new kinds of policies in the other branches. He concludes that the courts have made considerable difference for the state of public policy on three of the four issues, with gun policy as a partial exception (though since the book was completed, there have been a few signs of increased impact in the gun field). His analysis is careful and persuasive. Thus, in the debate about whether policy-oriented litigation is worth significant commitments of time and other resources, Keck provides support to those who respond affirmatively.

The book’s empirical analyses have major virtues. To begin with, the evidence on the four sets of issues is thorough. Whether readers are interested in those issues for their own sake or in the stories that Keck probes, they will learn a good deal from his narratives. Keck’s interpretations of the evidence are insightful, nuanced, and fair-minded. He takes new and valuable perspectives on the scholarly issues that he addresses in the book. One important example is his comparisons of courts with other institutions.

The empirical questions that the book addresses are closely connected with normative issues that Keck addresses. As on the empirical side, his analysis is nuanced. He argues that judicial activism in the form of overturning government policies is generally a legitimate and benign feature of the policy-making process so long as it is “bipartisan,” in the sense that the courts engage in activism on behalf of policy positions favored by both the left and the right. Keck acknowledges that this kind of bipartisanship is not guaranteed, and he expresses concern about a situation in which judicial activism leans heavily in one ideological doctrine. Of course, there is room to disagree with Keck’s argument about bipartisan activism. However, his formulation is clearly a useful addition to the debates over courts’ involvement in the resolution of major policy issues.

Judicial Politics in Polarized Times is both an excellent work of scholarship and a significant contribution to our knowledge about courts as institutions and policy makers. It merits the attention of any scholar of law and courts. It should also serve well in classes; it is written in a way that is accessible to undergraduate students, and it addresses important questions in the context of issues that will interest students. The book is a considerable achievement.