by Jeffrey K. Staton. Cambridge: Cambridge University Press, 2010. 236pp. Hardcover. $75.00/£45.00. ISBN: 9780521195218. eBook. $60.00. ISBN: 9780511740817.Reviewed by Matthew C. Ingram, Department of Political Science, University of Massachusetts Dartmouth. Email: mingram [at] umassd.edu.
pp.619-624
Public law scholars are accustomed to thinking of courts and judges as deeply embedded in politics. The formal decisions of courts are shaped by political forces, and these court decisions, in turn, shape the social and political landscape. Jeffrey Staton pays tribute to several familiar themes in his book, especially the strategic considerations of judges in rendering their decisions. However, in addition to emphasizing the push and pull of external forces acting on the judiciary, he refocuses our attention on the extrajudicial activities of judges and highlights the selective way in which judges promote their decisions before the public. Thus, where most judicial politics scholarship focuses on decision making, Staton draws our attention to a special kind of strategic, extrajudicial conduct (Dubek 2007) – judicial public relations – as a central part of his story of constructing judicial power. In what follows, I elaborate on the significance of these points for the study of public law and other fields, and outline some potential criticisms.
“High courts are trying to get their public relations right,” Staton tells us in the opening pages (p.5), and they do so to “construct their power” (p.22). Thus, the answer to the central puzzle of the book – “Why do judges go public?” (p.6) – is ‘to augment their power’. In this view, courts are strategic, self-empowering political actors with a media operation all their own. Even if this is a slightly simplified and overstated version of Staton’s core argument, he builds on existing literature in comparative judicial politics to contribute an account of judges as central actors in their own empowerment, carefully calculating not only how they decide cases (sincerely or strategically), but also when to “go public” in order to increase the likelihood of compliance and enhance the court’s position vis-a-vis society and other branches of government.
In making his argument, Staton covers an impressive range of methodological and substantive territory. In Chapters 2 and 5, formal models detail his theoretical arguments. Chapter 2 generates predictions about judicial decision making, promotion of case results (public relations), and compliance with these decisions. Chapter 5 yields predictions about the effect of transparency on legitimacy as conditioned by the principled or prudential behavior of the court. In the best tradition of EITM research (Empirical Implications of Theoretical Models), Staton identifies clear observable implications derived from his model’s predictions and proceeds to test these implications with various regressions. Chapters 4 and 6 report the results of these tests, while chapter 3 [*620] provides a more descriptively qualitative treatment of judicial public relations in Mexico. Notably, his tests in chapter 4 draw on two original data sets built from fieldwork in Mexico City (data sets are introduced on p. 20 and discussed in greater detail at 68-71 and 91-93), and his final tests in chapter 6 take existing data from studies of judicial legitimacy (Gibson, Caldeira, and Baird 1998) and push it in new directions. Thus, Staton draws on formal, game-theoretic modeling, qualitative methods and quantitative methods to examine topics close to the hearts of public law scholars – decision making, enforcement/compliance, and judicial legitimacy – contributing his own new data and drawing novel insights from existing data.
As a study of judicial power, Staton’s work fits within a burgeoning literature examining the “global expansion of judicial power” (Tate and Vallinder 1995), a phenomenon that encompasses growth in the breadth of material authority (jurisdiction), depth of material resources (budgets, facilities, and personnel), the degree of non-material influence and perceived importance (legitimacy), and the willingness of judges to assert themselves in the face of opposition both from political branches and from within their own institutions (e.g., Ginsburg 2003; Hirschl 2004; Finkel 2005; Helmke 2005; Hilbink 2007). The crucial twist is that Staton spotlights the very public role of judges’ off-bench media relations in the expansion of their own power. Conventional accounts locate the origins of this expansion either in (a) forces external to the judiciary, or in (b) the implicit or explicit negotiation of power that judges carry out in the process of deciding cases. For instance, politicians approve a judicial reform in response to electoral circumstances, or judges render a decision in response to the political configuration at the time. In contrast to (a), Staton’s account of judicial public relations places at least some of that control in the hands of judges, and in contrast to (b), all the action in Staton’s account takes place away from the formal decision-making arena as judges work to mediate public awareness of the court’s work.
Staton builds on Vanberg’s (2005) insights regarding the role of public perception of courts and draws on Gibson, Caldeira, and Baird’s study of judicial legitimacy. By extending their arguments but also innovating to examine the effect of the public’s awareness of courts on legitimacy as conditioned by defiance costs, Staton proposes a more interactive relationship between judicial behavior and public opinion. That is, judicial behavior is sensitive to public opinion, but public opinion of judicial behavior on the bench is fashioned by, not independent of, judicial behavior off of it. Notably, when public attention is needed to insulate the courts from political attacks, judges employ non-legal (i.e., not law-related) media skills to stimulate the necessary social response; this kind of activity cuts against conventional perceptions of the apolitical jurist and against notions that judges’ weapons of institutional self-defense are restricted to the eloquence of their decisions. Thus, Staton’s account of judicial public relations highlights a provocative brand of state-society relationships – intensely interdependent and mutually constitutive relations between judges and the public. [*621]
Despite these strengths, some areas of the book could be developed further. I address three in the following order: conceptual, theoretical, and methodological. First, some readers may quibble with the way Staton’s conceptualization of judicial power blurs the line between power and independence. He narrows judicial power to its de jure and de facto components, and defines the de jure component as formal jurisdictional boundaries, i.e., what kinds of cases a court has the power to decide. Conversely, de facto power is presented as the actual compliance with these decisions. Staton relies on the latter, using power to mean that “an actor can cause by its actions the outcome that it prefers”, and goes on to say that this definition is “identical” to that of judicial independence used by other authors (p.9). He acknowledges, however, that a competing definition of independence intends the concept only to mean that a judge’s decision was made free from external influence, regardless of compliance. Thus, by power Staton means compliance, which coincides with one definition of independence, while viable alternatives distinguish between de jure power, independence, and enforcement. Without belaboring the point, it is perhaps enough to note that concepts like judicial power, judicial strength, and judicial independence belong to the class of what Gallie (1956) called "essentially contested concepts" – like ideology and democracy – and that dedicated conceptual work in this area would be a welcome addition to the literature.
Second, Staton highlights a provocative tension early on between transparency and legitimacy. Both are desirable outcomes, but increasing transparency in cases where the court is acting prudently or pragmatically in the face of overriding political pressure can undermine public trust in courts. Courts risk being exposed as unprincipled, eroding confidence in the judiciary. Indeed, Staton presents this tension as constituting a “power trap: promote transparency and risk undermining legitimacy or do not promote transparency and risk political irrelevance” (p.7).
The focused analysis of this tension comes in Chapter 6. This analysis strongly indicates that the effect of public awareness of courts on judicial legitimacy is conditioned by costs incurred by judges if the political branches defy the ruling (defiance costs). That is, the court’s legitimacy benefits the most from public awareness where the court is unlikely to be punished or overruled. Conversely, the court’s image suffers if public awareness is high, the court is threatened with defiance, and therefore it behaves deferentially or prudentially, disappointing an attentive public. These are compelling results. However, a provocative and unexplored feature of the results graphed in figures 6.1, 6.2 and 6.3 is the suggestion that the relationship between awareness and legitimacy, as conditioned by defiance costs, reverses direction (it is non-linear and not monotonic). While the analysis focuses on the increasingly positive slope of the relationship between awareness and legitimacy where defiance costs are low anddecreasing, the relationship reverses where defiance costs are very high and increasing, which Staton himself notes (e.g., at pp.174-175, 181). While not always significant, the suggestion of this change in the effect of public awareness is clear [*622] across every graph. Notably, this reversal is not predicted by the theory and left unexplored by Staton. However, we might ask what it means, and how it might open other avenues of research.
One possibility is that citizens may perceive a court as legitimate in both unconstrained settings (as anticipated by Staton) and in highly constrained settings (unanticipated by Staton). Following the logic of Staton’s argument (chapter 5), legitimacy increases when awareness is high and courts need not be prudent, and legitimacy decreases when awareness is high and it is clear that courts are being prudentially strategic. However, the evidence suggests legitimacy increases again when constraints on courts are so high that citizens may realize the court has no option but to defer to the political branches. Stated otherwise, publics may sympathize with judges who clearly have no room to move. In this way, Staton’s results suggest a phenomenon we might call the “legitimacy of the highly constrained court,” which would be a function of both awareness of the court and awareness of the tight constraints.
Separately, while Staton examines the tension between transparency and legitimacy in the comparative analysis in Chapter 6, this tension is never fully explored in the Mexican context. He refers to a case in 2000 when the court ruled against outgoing president Ernesto Zedillo (1994-2000), but his treatment of that case is fairly cursory (pp.100-101) and his interpretation does not rule out alternative explanations. This is a key area where the fieldwork, interviews, and archival analysis Staton conducted could have been leveraged to provide a stronger account of the process by which judges weighed the trade-off between transparency and legitimacy, the strategies they may have employed to negotiate or get around the power trap, or at least their understanding of the tension.
This relates to a third and broader concern about the book, namely, the way it employs qualitative methods. Staton clearly spent a lot of time speaking with court staff, and invested heavily in understanding the Mexican legal system and reading and coding a large set of cases. However, the focus of this effort seems to have been to gather information primarily so that it could be converted to quantitative form and submitted to the multiple logistic, survival, and other regression analyses in the book. That is, all of the causal inferences rely on correlation-based average effects among the quantitative data, or what Brady and Collier (2004) have called “data set observations.” While the analysis is always careful, measured, and perfectly reasonable, his use of the qualitative evidence is not harnessed in an equally systematic way to strengthen inferences, trace causal processes, or identify causal mechanisms. Mixed methods research in political science has grown tremendously over the last two decades, especially in three areas: (i) explicit integration of formal models and quantitative analysis (e.g., the EITM framework); (ii) explicit integration and sequencing of qualitative and quantitative techniques (e.g., Lieberman 2005; Gerring and Seawright 2007), and (iii) the process-based logic of qualitative inquiry (see Brady and Collier). Staton does (i) marvelously well. However, I could not help feeling there was a missed opportunity to do (ii) [*623] and (iii), integrating a more rigorous analysis of interviews, close readings of decisions, news accounts, and ancillary documents related to key cases examined in the quantitative analysis. This kind of analysis would have enabled tracing the process of decision-making in an equally careful and systematic way, gauging observed causal processes against expected causal patterns as suggested by theory-guided process tracing (Hall 2003; Falleti 2006). This is especially true in Mexico, where the analysis of the tension between transparency and legitimacy is never carried out for lack of quantitative data. Indeed, the absence of quantitative data perhaps justified a more qualitative approach to this question while staying in Mexico, fleshing out the analysis with different streams of evidence, rather than moving to a comparative data set that excluded Mexico.
These criticisms aside, JUDICIAL POWER AND STRATEGIC COMMUNICATION IN MEXICO is compelling and provocative, spanning interests across research areas within the subfield of public law/judicial politics from judicial behavior to compliance and enforcement. Given its methodological and substantive range, Staton’s book should be engaging reading to a wide range of audiences, not just specialists in public law/judicial politics. Indeed, by developing theories of both judicial decision-making and the role of organizational “insiders” in building institutions (e.g., Crowe 2007), as well as posing broader, provocative questions about the role of judges in shaping social attitudes about courts, the implications of the book for institution building and state-society relations should make it compelling for audiences well beyond the public law field. In sum, drawing on formal modeling, two original data sets, and rigorous quantitative techniques, Staton’s book offers a brilliant example of what quantitatively-oriented comparative judicial scholarship should look like.
REFERENCES:
Brady, Henry E. and David Collier, eds. 2004. RETHINKING SOCIAL INQUIRY: DIVERSE TOOLS, SHARED STANDARDS. Lanham, MD: Rowman & Littlefield, Inc.
Crowe, Justin. 2007. “The Forging of Judicial Autonomy: Political Entrepeneurship and the Reforms of William Howard Taft.” JOURNAL OF POLITICS 69(1): 73-87.
Dubek, Leslie. 2007. “Understanding ‘Judicial Lockjaw’: The Debate over Extrajudicial Activity.” NEW YORK UNIVERSITY LAW REVIEW 82: 569-601.
Falleti, Tulia G. 2006. “Theory-Guided Process Tracing in Comparative Politics: Something Old, Something New.” APSA-CP, NEWSLETTER OF THE COMPARATIVE POLITICS SECTION OF THE AMERICAN POLITICAL SCIENCE ASSOCIATION,17(1) : 9-14.
Finkel, Jodi. 2008. JUDICIAL REFORM AS POLITICAL INSURANCE: ARGENTINA, MEXICO, AND PERU IN THE 1990S. South Bend, IN: University of Notre Dame Press.
Gallie, W.B. 1956. “Essentially contested concepts.” PROCEEDINGS FROM THE ARISTOTELIAN SOCIETY 56: 167-98. [*624]
Gerring, John and Jason Seawright. 2007. “Techniques for Choosing Cases.” In John Gerring, CASE STUDY RESEARCH: PRINCIPLES AND PRACTICES. Cambridge: Cambridge University Press, pp. 86-149.
Gibson, James L., Gregory A. Caldeira, and Vanessa A. Baird. 1998. “On the Legitimacy of National High Courts.” AMERICAN POLITICAL SCIENCE REVIEW 92: 343-58.
Ginsburg, Tom. 2003. JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES. Cambridge: Cambridge University Press.
Hall, Peter A. 2003. “Aligning Ontology and Methodology in Comparative Research.” In James Mahoney and Dietrich Rueschemeyer, eds. COMPARATIVE HISTORICAL ANALYSIS IN THE SOCIAL SCIENCES. Cambridge: Cambridge University Press, pp. 373-404.
Helmke, Gretchen. 2005. COURTS UNDER CONSTRAINTS: JUDGES, GENERALS, AND PRESIDENTS IN ARGENTINA. New York: Cambridge University Press.
Hilbink, Lisa. 2007. JUDGES BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM CHILE. Cambridge: Cambridge University Press.
Hirschl, Ran. 2004. TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM. Cambridge: Harvard University Press.
Lieberman, Evan S. 2005. “Nested Analysis as a Mixed-Method Strategy for Cross-National Research.” AMERICAN POLITICAL SCIENCE REVIEW 99: 435-452.
Tate, C. Neal, and Torbjorn Vallinder, eds. 1995. THE GLOBAL EXPANSION OF JUDICIAL POWER. New York: New York University Press.
Vanberg, Georg. 2005. THE POLITICS OF CONSTITUTIONAL REVIEW IN GERMANY. New York: Cambridge University Press.
© Copyright 2010 by the author, Matthew C. Ingram.
