Vol. 29 No. 9 (October 2019) pp. 110-113THE SUPREME COURT: AN ANALYTIC HISTORY OF CONSTITUTIONAL DECISION MAKING, by Tom S. Clark. New York: Cambridge University Press, 2019. 428pp. Cloth $99.99. ISBN: 9781108422765. Paper $29.99. ISBN: 9781108436939.
Reviewed by Patrick C. Wohlfarth, Department of Government and Politics, University of Maryland, College Park. Email: patrickw@umd.edu.
Sometimes I wonder if justices on the U.S. Supreme Court would prefer to exist in seclusion, especially in today’s political environment. Except for the occasional trip to the Kennedy Center Opera House, or to the Washington Navy Yard to catch a Nationals game (Savage 2015), they could hole up in their chambers and make their decisions while sequestered like a jury in a high-profile trial. Forget the chatter about cameras in the Courtroom—turn off the audio recorders and kick everyone out. Of course, such a (facetious) proposition belies the fact that the “outside” political world is always present; it is where the docket begins, where the decisions are made, and where the country responds.
In THE SUPREME COURT: AN ANALYTIC HISTORY OF CONSTITUTIONAL DECISION MAKING, Tom S. Clark sets out to capture in a systematic manner the dynamic contours of the politics of constitutional history since the Civil War. This is a tall order which the book delivers. Clark’s central argument is that constitutional change coming from the Court is a product of various external social and macro-political forces that shape the content of the Court’s docket and establish a context in which the justices (at the micro level) then make decisions based on their multidimensional preferences. At its core, Clark’s ambitious book seeks to strike a balance between offering a rich, historical narrative and a parsimonious, social scientific inquiry. It may be that strict adherents to either analytical perspective will grumble about this balancing act. I don’t, however, and I find Clark’s approach to be admirable and refreshing. He offers perhaps the most impressive, rigorous account of the dynamics of constitutional issue change on the Supreme Court, to date. In short, this novel book should interest law and courts scholars of all stripes and ought to be required reading for years to come.
The first half of the book lays out the theoretical and empirical foundations that motivate the rest of the analysis. One key argument at the outset is that law is not a constraint on justices, but rather the political landscape shapes how justices interpret and ultimately determine the content of constitutional law. More specifically, Clark contends that social and political circumstances spark legal questions. Justices then resolve these cases and controversies in a manner consistent with micro-level theory, which subsequently aggregate into constitutional doctrine.
Clark features the case-space theoretical model to motivate his inquiry. As he states, “the premise underlying the case-space model is one in which judges have different preferences on different dimensions of a given case. Any given case may activate some of those dimensions relatively more or less” (pp. 34-35). As a consequence, justices balance a case’s multiple dimensions and the internal cleavages on the Court ultimately determine the content of doctrine. Invoking the case-space model offers a compelling theoretical foundation upon which the entire book rests. The book’s theoretical development is also notable for its emphasis on issue framing by litigators. Although some prior work has considered the notion of “heresthetics” and strategic issue framing on the Court (e.g., Wedeking 2010), the emphasis on this important aspect of the process by which cases and controversies produce case law is an essential—and often overlooked—part of the Court’s decisions.
As he moves to the analytical side of the inquiry, a central innovation that Clark presents (as developed in his earlier coauthored work—see Lauderdale and Clark [2012, 2014]) is a theoretically-motivated measurement model to identify the issues, or topics, onto which justice’s [*111] votes and opinions map. Clark argues that the data are best categorized into six topic dimensions: Judicial Power, Economics and Business, Central Authority, Balance of Power, Crime and Punishment, and Individual and Civil Rights. He estimates each justice’s preferred policy preference (or ideal point) across each dimension. Thus, the content of the Court’s decisions maps onto multiple topic dimensions, which change over time, and justices have preferences that vary across issues. One important takeaway from this analysis is that the preference alignments among justices (and, by extension, the identity of the median justice) varies significantly across individual cases. This innovative work brings to bear a rigorous, multifaceted portrait of justices’ preferences that serve as the linchpin for Clark’s broader analysis of the history of constitutional change.
I should note that it is a challenging endeavor to communicate the substance of case-space modeling and ideal point estimation in a way that will engage a general academic audience. Clark’s writing in this regard is about as accessible as one can make it (though readers without the requisite statistical knowledge, or patience, may still find small parts of the book to be challenging). For instance, he is particularly adept at explaining the complex, technical details of ideal point estimation and multidimensional scaling (including their critical assumptions) in Chapter 3, including how they relate to the case-space theoretical foundation. He also helpfully points to the example of measuring aptitude in the SAT/GRE exam for further illustration.
Chapters 4 and 5 present the data and the justices’ estimated ideal points across topic dimensions. In particular, they offer a number of intriguing descriptive findings. Among other interesting points, Clark’s data suggest that the Supreme Court’s docket and decisions have become more complex and multidimensional over time, especially during the latter half of the 20th century. He also shows thought-provoking illustrations of aggregate temporal changes in the ideological location of the median justice and the degree of intra-Court preference polarization.
The book’s latter chapters take a deep dive into the history of constitutional politics. Clark divides his analytical discussion into two distinct periods—Reconstruction to 1937 (Chapter 6) and 1937 to 2012 (Chapter 7). For each historical period, Clark uses his systematic estimates of the mixture of topic dimensions and justice’s preferences, among other data, to characterize the contours of constitutional doctrine change. As the analysis moves across time, he includes a detailed discussion of a wide range of representative case law and integrates a common set of analytical results: the identity of the Court’s case-specific median justices across time; the ideological tenor of the Court’s median justice across issue dimensions and time; and the extent of internal preference polarization over time.
What is most intriguing about this historical analysis is how Clark can routinely point to both external and internal factors that appear (at least partially) responsible for the evolution of constitutional doctrine. Among these, several empirical findings stand out. From the late-19th century into the early part of the 20th century, the content of the Court’s opinions more frequently map onto the Economics and Business preference dimension. Clark shows that this change is related to labor, or union, strength across the states, in addition to turnover in the justices serving on the Court. After the turn of the 20th century, Socialist Party membership is related to an increase in economic activity decisions that divide justices along the Balance of Power cleavage. And then by the middle of the 20th century, a state’s membership in the Communist Party positively predicts more First Amendment cases. Furthermore, changes over time in the crime rate (in the middle part of the 20th century) predict a greater concentration of decisions along the Balance of Power, Criminal Law, and Individual and Civil Rights dimensions. And, during the latter part of the 20th century, Clark shows relationships between justices’ voting patterns and both drug use and the size of the prison population.
While these broad shifts in doctrine will likely be familiar to many readers, there are a number of thought-provoking insights connecting political and social forces to this doctrinal change. The [*112] book is filled with many other interesting historical analyses and details—too many to recount here. But what makes this book particularly novel is how Clark is able to leverage his systematic tools to show how the political landscape in the United States is significantly predictive of justices’ votes and opinions.
While the book is replete with many strengths and intriguing findings, I was left pondering several questions. First, a central task is to settle on the number of issue (or topic) dimensions onto which Supreme Court justices’ decisions should map (based partly on optimizing the fit with the justices’ votes). This task is especially important, as the estimation of the case-specific mixture of topic dimensions (and the justices’ preferences along those dimensions) follows this critical assumption. Yet the identification of the “right” number of topics is a bit of an art. For instance, Clark identifies six predominant dimensions as optimal, but it isn’t entirely clear why seven, or even ten, issue dimensions wouldn’t be a preferred choice based on the data. To be clear, though, Clark acknowledges the role of judgment in his identification strategy, which strikes me as defensible. He sensibly balances the trade-off between making granular issue distinctions and an educated aggregation of the Court’s multidimensional docket. However, it would not be unreasonable for a reader to conceive of the dynamics of constitutional law using a more complex set of issue dimensions.
One might also question how comfortable we should be in making such broad comparisons over time using his topic and (static) ideal point estimates (see Bailey 2007). Clark readily acknowledges this as a potential limitation, and many of his analyses focus on smaller subsets of time. Nonetheless, applying ideal point estimation tools with the desire to map out about 150 years of constitutional decision making presents a number of questions about how far the data can be effectively stretched for this purpose.
I also wonder how future studies can build upon applying the case-space theoretical framework in an empirical setting. On this front, Clark’s work here is at the forefront of connecting case-space theory to empirical models of the Court’s decision making. However, the theory can be quite complex, and thus requires considerable simplification to connect it to observable, testable empirical implications. Of course, just like Clark’s assumption that a case’s composite opinion language effectively captures the mixture of all relevant topic dimensions (as applied to all justices), one must necessarily make simplifying choices in any empirical setting. I think we ought not to unduly censor rich theory simply due to measurement limitations; yet making the connection between theory and empirics still seems challenging.
Notwithstanding the reasonable limitations of this (or any) study, this excellent book is positioned to significantly influence the path of future scholarship. First, it stands out as a model of how rigorous social scientific methods can enhance a detailed historical treatment of decision making on the Supreme Court. Clark also shines a spotlight on the question of how constitutional decision making may play out in an increasingly polarized political system—both external to the Court and among the justices themselves. What is more, this study reminds us that decision making on the Supreme Court is multidimensional and often much more complex than is often assumed.
Perhaps most importantly, Clark calls attention to the inherent non-recursive dynamics of constitutional law coming from the High Court. That is, various social and political forces shape litigation strategies, legal questions, and political controversies that show up at the Court’s doorstep. The docket’s makeup, then, activates different preference dimensions among the justices that produce decisions, which in turn may influence the political and social landscape in the United States (and then repeat). Clark taps into this complexity in a way that is both fascinating yet also challenging for future studies of law and courts. He doesn’t capture the full picture here, nor should he be expected to do so. But Clark’s fine work should remind students and scholars of the U.S. Supreme Court that the state of constitutional law and judicial decision making isn’t static, nor is it hermetically sealed within the confines of the Marble Palace. [*113]
REFERENCES:
Bailey, Michael A. 2007. “Comparable Preference Estimates across Time and Institutions for the Court, Congress, and Presidency.” AMERICAN JOURNAL OF POLITICAL SCIENCE51(3): 433-448.
Lauderdale, Benjamin E. and Tom S. Clark. 2012. “The Supreme Court’s Many Median Justices.” AMERICAN POLITICAL SCIENCE REVIEW 106(4): 847-866.
Lauderdale, Benjamin E. and Tom S. Clark. 2014. “Scaling Politically Meaningful Dimensions Using Texts and Votes.” AMERICAN JOURNAL OF POLITICAL SCIENCE 58(3): 754-771.
Savage, David G. “BFFs Ruth Bader Ginsburg and Antonin Scalia agree to disagree.” LOS ANGELES TIMES. June 22, 2015.
Wedeking, Justin. 2010. “Supreme Court Litigants and Strategic Framing.” AMERICAN JOURNAL OF POLITICAL SCIENCE 54(3): 617-631.
© Copyright 2019 by author, Patrick C. Wohlfarth.
