Vol. 29 No. 7 (August 2019) pp. 72-74DECISION MAKING AND CONTROVERSIES IN STATE SUPREME COURTS, by Salmon A. Shomade. Lanham: Lexington Books, 2018. 136pp. Cloth $90.00. ISBN: 978-1-4985-4299-9.
Reviewed by Jenna Becker Kane, Department of Political Science, West Chester University. Email: jbeckerkane@wcupa.edu.
In DECSION MAKING AND CONTROVERSIES IN STATE SUPREME COURTS, Salmon A. Shomade examines the effects of public controversies on the decision-making of state supreme court justices. Although this group is not often viewed as those most likely to become embroiled in political scandals, some state supreme court justices have found themselves entangled in public controversies that raise public awareness and scrutiny of these multi-member courts. Scholars typically treat these controversies as anecdotal stories of judges acting badly but Shomade adeptly recognized these instances as an opportunity to examine a previously unexplored aspect of collegial court behavior – how public controversies affect judicial decision-making. Shomade considers three instances of public controversies that affected the supreme courts of Alabama, Louisiana, and Wisconsin and examines the behavior of state supreme court justices before, during, and after the onset of public controversy. Through this examination, Shomade tests five competing models of judicial decision-making (legal, attitudinal, strategic, role values, and group interaction) to assess their applicability to collegial court decisions in the wake of public scrutiny.
For each case study, Shomade provides the necessary background regarding the controversy that arose, the justices involved, and the historical and institutional context in which the controversy took place. He then examines data on the voting behavior of each high court judge for a two-year period both prior to and following the public controversy in order to assess if the ensuing scandals prompted a change in voting behavior on the courts. Shomade gathered data on the rate of unanimous votes, majority joins, and dissents both as a court and individually for each judge. To supplement this quantitative examination, the author also investigates the full-text of state supreme court decisions to look for evidence of changes in opinion writing behavior between the judge(s) involved in the controversy and their colleagues on the court.
Shomade’s first, and most well-developed, case study examines the controversy surrounding a Ten Commandment display at the Alabama Judicial Building. Former state supreme court Chief Justice Roy Moore’s decision to install – and then his eventual refusal to remove – the display came under public scrutiny between 2001 and 2003. After a federal district court ruled the display an unconstitutional governmental establishment of religion, Moore defied the court ruling by refusing to remove the display despite the threat of a $5,000 per diem fine. Moore’s public position on the issue rallied public support for the monument, which included public demonstrations and continued appeals in the courts. Throughout the ordeal, Moore’s colleagues on the court remained silent and refused to invoke an administrative procedure that would allow them to override the chief justice’s decision to keep the monument. It wasn’t until Moore’s legal challenges were exhausted and a court-imposed deadline loomed that Moore’s colleagues on the Alabama Supreme Court ultimately voted unanimously to remove the monument.
The second high court controversy considered stemmed from an internal dispute within the Louisiana Supreme Court in 2013 over the elevation of Justice Bernette Johnson as the state’s first African-American chief justice. Upon the retirement of then Chief Justice Catherine Kimball in 2012, a controversy arose regarding who on the court had legal claim to the position of chief justice. According to Article V, Section 6 of the Louisiana Constitution, the position of chief justice is awarded to the “judge oldest in point of service.” [*73] (La.Const. art. V, §6) Having been appointed to the Court in 1994, Justice Johnson laid claim to the position as the longest-serving judge on the court. She was challenged by Justice Jeffrey Victory who joined the court in 1995 and contested Johnson’s claim to the chief justiceship on the grounds that she was initially appointed to the court rather than elected. Following a public controversy over the role race may have played in the elevation dispute and a subsequent lawsuit, the Louisiana Supreme Court determined that Justice Johnson had the rightful claim to the chief justiceship under the state’s constitution.
Shomade’s final case study focuses on public scrutiny directed at the Wisconsin Supreme Court over media reports in 2011 revealing allegations that Justice David Prosser had engaged in a verbal altercation with Chief Justice Shirley Abrahamson and separate allegations that Prosser engaged in a physical altercation with Justice Ann Walsh Bradley in 2010. The disputed physical conflict between Prosser and Bradley centered around a politically contentious court opinion concerning then Governor Scott Walker’s sponsored legislation curtailing public employees’ collective bargaining rights, which highlighted the already existing partisan divide between court members. While accounts of the incident differ, no criminal charges were ever filed against Prosser and an ethics complaint filed by the Wisconsin Judicial Conduct Commission against Prosser in 2012 went unresolved due to judicial recusals on the high court.
While each of the three controversies studied were unique, Shomade found evidence of each of the five decision-making models throughout the controversies. Most evidence from the Louisiana case points toward the justices handling the controversy as a purely legal question about the interpretation of the state constitutional provisions on judicial seniority and elevation of a chief justice. The bulk of the evidence examined in the Alabama controversy supports the strategic model of decision-making as Justice Moore’s colleagues only voted to remove the Ten Commandment’s display once the court-ordered daily fine of $5,000 was set to begin. Shomade attributes much of the justice’s behavior during the Wisconsin case to the group interaction and attitudinal models. Although the Wisconsin court was clearly an exemplar of intra-court dysfunction that prevented the court from resolving disputes, the ideological preferences of the justices appeared to explain the behavior of the justices throughout the entire saga.
Ultimately, Shomade looks for commonalities across the three case studies and finds that public controversies do appear to affect the decision-making of state high court judges, but only in certain instances. He concludes that the nature of the controversy and the context in which it arises are crucial for understanding how a state high court will respond. If the nature of the controversy is highly salient for external actors, even if not for the justices themselves, a controversy may eventually affect court decision-making. The Alabama case highlights this confluence of events well. Justice Moore’s colleagues only contradicted his refusal to remove the monument once enough outside actors were demanding compliance with the federal court order. However, if the underlying nature of the controversy is firmly established in society, as was the case with racial tensions in Louisiana, or external actors are silent on the issue, as was the case in Wisconsin, there may be little to no impact of a controversy on court decision-making.
While the accomplishments of the book are many, there are several limitations that detract from its overall impact. The first such issue stems from the somewhat repetitive and disjointed nature of the book’s early sections. While this is largely an organizational concern, it severely diminishes the readability of the book. Rather than unfolding organically, both the preface and the introduction engage in repetitive discussions that range from arguments about the importance of state supreme courts, discussion of judicial decision-making models, and the many questions addressed by the book. While some reiteration of the book’s central theme is to be expected, the fragmented nature of the front matter leaves the reader feeling less-than-enthusiastic about the chapters to come. [*74]
Another limitation concerns the book’s theoretical foundation. While the bulk of the book is centered around the application of various models of judicial decision-making to judges embroiled in controversy, the book seems to stray a bit outside of its stated theoretical focus by including theories of race and gender without clearly linking them to the central premise of the book. The first such mention of gender, race, and judging comes in the introduction, where the findings of past research are discussed without any linkage to the focus of the book. This problem becomes more significant in later chapters. In Chapter 3, despite having invoked theories of race and judging earlier, Shomade makes no attempt to link these theories to the case study or resulting discussion. And while theories of sexism are incorporated into the discussion of the Prosser-Bradley controversy in Chapter 4, it is difficult for the reader to see how the brief inclusion of this theory to develop possible motivations for Prosser’s behavior towards his female colleagues is related to the book’s primary focus. Without a more well-developed theoretical grounding of race and gender into the overall focus of the book, the inclusion of these theories feels a bit like an afterthought shoe-horned into the discussion.
The final limitation of the study is an unfortunate result of the controversies selected for examination. By choosing controversies occurring in three elected state supreme courts (both Alabama and Louisiana use partisan elections while Wisconsin uses non-partisan elections), Shomade limited his ability to learn about the possible effects of judicial selection mechanism, a key factor in state supreme court decision making. While the author acknowledges that his case studies of elected courts makes testing the effects of selection method impossible, there is no discussion of how he selected these three cases for inclusion in the study. This omission leaves the reader wondering if the author exhausted the possibility of finding a high court controversy from a state that appoints or uses a hybrid system to select its judges. Indeed, if only elected state high courts find themselves mired in public controversies, this should be highlighted by the author as an interesting point of comparison to inform the policy debate over the quality of judges produced by varying methods of judicial selection.
Despite these limitations, Shomade’s book provides an excellent first look at how public controversies affect judicial behavior on state high courts which are often insulated from public scrutiny. While researchers can never be certain of the motivations of judges and the intra-court dynamics at play behind closed doors, Shomade makes excellent use of both quantitative and qualitative research methods to assess the factors motivating judicial behavior on state supreme courts when judges find themselves mired in public controversy.
© Copyright 2019 by author, Jenna Becker Kane.
