Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy.

By George I. Lovell. New York: Cambridge University Press, 2003. 290p. $65.00.

Relationships between the U.S. Congress and U.S. courts are a central focus of many American political studies. Analyses of congressional-judicial cooperation and conflict between elected legislators and appointed, unelected, federal judges have emphasized the development and maintenance of institutional powers and contrasts in democratic accountability of elected and unelected officials. An underlying theoretical question in these interactions is why judges' institutional position allows them to resolve policy issues.

In Legislative Deferrals, George Lovell explores whether the U.S. Congress empowers the federal judiciary to shape the meaning of key legislative provisions. He examines whether legislators engaged in strategic legislative deferrals through statutory ambiguities and interpretive questions that would require later resolution in the courts. If legislators are able to empower judges to make policy, such legislative deferral behavior challenges mainline assumptions about both representative accountability of legislative processes and the independence of legislative-judicial relationships. Lovell utilizes historical-institutional analysis on the basis of case studies of four important labor statutes from 1898 to 1935: Erdman Act (1898), Clayton Act (1914), and from a later era the Norris-LaGuardia Act (1932) and Wagner Act (1935). He follows the path of new historical-institutional scholars, offered in works by Cornell Clayton and Howard Gillman (eds., Supreme Court Decisionmaking: New Institutional Approaches [1999]), among others, who have developed alternative explanations of judicial decision making to behavioral models of judicial choice. The historical-institutional approach allows Lovell to effectively introduce a new series of puzzles about legislative-judicial interactions and the maintenance of the judiciary's institutional powers that will interest American politics scholars.

Lovell offers a tempered analysis of official Congressional records, documents concerning the behavior of leading labor spokesmen and lobbyists—such as AFL President Samuel Gompers—and U.S. Supreme Court decisions to assess “how well participants in the legislative process anticipated the role of the courts and whether those participants tried to shape the role judges would play” (p. 12). In two of four case studies, Lovell found that legislators and interest groups engaged in a legislative deferral through strategic legislative choices that expanded judicial discretion to resolve statutory provisions. These strategic choices were based upon legislators' and participants' anticipation of interpretive issues that would be decided by federal courts. The measurement of legislative deferrals requires the specifying of complex institutional processes across different branches, and also requires judgment about legislative and interest groups' anticipation of judicial policymaking. The author is parsimonious in making these evaluations about whether a legislative deferral has occurred. He should expand his study to address policy side effects, both short and long term, for legislators and participants. Future analyses of legislative deferral behavior should address questions of measurement and the definition of strategic legislative–court relationships in different eras. The legislative deferrals concerning statutory language allowed judges to make crucial labor policy decisions. These judicial policy choices reintroduce debates concerning connections between judicial authority and democratic processes.

The book poses a central question of whether courts can be barriers to democratic accountability “because they appear to reverse the achievements that organized social groups like labor make through seemingly more democratic legislative processes” (p. 154). In the four case studies there was substantial emphasis upon labor organizations' legislative goal to end judicial injunctions against labor's organizing and collective bargaining activities. Lovell's legislative deferral research framework provides a broader theoretical underpinning than normal separation of powers analyses to explain judicial policymaking as a key element in shaping legislative compromises. I support his legislative deferral formulation concerning cooperation among branches; especially noteworthy is the argument that legislators shift responsibility to actors outside the legislative chambers in order to avoid direct conflicts with the courts and to limit direct accountability by either legislative or judicial branches. His arguments support Mark Graber's analysis (see “The Non-Majoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7 [1993]: 35–72 of the Sherman Anti-Trust Act that legislative deference to the courts was a source of judicial power.

Lovell's analysis of legislative-judicial interdependence conflicts with analyses of critical legal scholars (see, e.g., Karl Klare, “Judicial DeRadicalization of the Wagner Act and The Origins of Modern Legal Consciousness, 1937–1941,” Minnesota Law Review 62 [1978]: 265–339). These scholars have criticized early-twentieth-century U.S. Supreme Court decisions as defying popular will by limiting the possibilities for labor organizations and the development of a U.S. labor movement. A broader institutional question is how interdependence in interbranch legislative-judicial relations affects possibilities of significant policy reforms. Future interbranch institutional studies could examine courts' continuing ability to make policy under varying conditions of institutional power.

Lovell successfully begins to unravel important puzzles about interbranch relations and institutional development in American politics. His arguments concerning complex interactions among interest groups, Congress, and the courts enlarge our understanding of past events concerning labor legislation and labor-industrial relationships. Lovell's legislative deferral framework leads to broader understanding of federal judges' institutional power and their capacity for policymaking on major statutes. Legislative Deferrals produces an excellent path to facilitate additional questions concerning interdependence between legislative and judicial policymaking and democratic accountability in American government.