Vol. 30 No. 11 (December 2020) pp. 170-177LIGHTING THE WAY: FEDERAL COURTS, CIVIL RIGHTS, AND PUBLIC POLICY, by Douglas Rice. Charlottesville: University of Virginia Press, 2020. 201pp. Hardcover $39.50. ISBN: 9780813943947.
Reviewed by Ryan C. Black, Department of Political Science, Michigan State University. Email: rcblack@msu.edu.
Pop quiz, hot shot: It’s the end of the semester in your judicial politics class and, if your syllabus looks anything like mine, it means you’re covering the topic of judicial impact. Is it perhaps strange to conclude the class with a question that might render the preceding fifteen weeks moot? Absolutely, but that’s not important right now. What is important, is that Douglas Rice’s LIGHTING THE WAY has put together a nice and compact book that breathes new life into the perennially important and longstanding question of whether the federal judiciary can uniquely influence public policy. So, when Dennis Hopper calls you up and asks “what do you do?” in this increasingly absurd hypothetical that I’m spinning out to try to get you to read this review, well, now you know: It’s time to add Rice’s LIGHTING THE WAY to both your class content as well as your preferred citation manager program.
I reach this conclusion because Rice offers at least two new innovations that advance the literature and make LIGHTING THE WAY a book that needs to be taught about as well as cited in your own work. The first advancement is that Rice approaches the judicial impact topic from the perspective of issue attention. As he puts it, “Policymakers have limited time and resources. In allocating some of their finite time and resources to an issue, they change the probability that we might observe policy change” (p. 5). This is a concept that is probably quite familiar to your public policy colleagues since that is where it originates. It is one, however, that hasn’t been regularly examined by us law and courters. Moreover, it turns out that those in public policy have, in general, returned the slight by giving comparatively short shrift to examining the judiciary (but see Grossmann and Swedlow 2015 for a noteworthy exception). What this means, then, is that LIGHTING THE WAY is one of those rare books that actually has something to say across different subfields.
The second major innovation that Rice’s LIGHTING THE WAY brings us derives from the actors he examines. The most prominent studies of judicial impact tend to focus on the activity and action of the U.S. Supreme Court (e.g., Rosenberg 1991, 2008; Hall 2010). By contrast, Rice’s efforts shine a particularly strong light on the activity of the federal district and circuit courts. Thus, those who frequently bemoan our field’s singular focus on the Supreme Court will find LIGHTING THE WAY to be quite refreshing in just how much it has to say about the impact of the lower federal courts. Rice examines overall federal judicial issue attention on the issue attention of the rest of the policy-making system, but also analyzes how the lower courts impact the issue attention of the Supreme Court (and vice versa).
[*171] But, c’mon, skip to the chase! What camp does Rice and LIGHTING THE WAY end up in? Are we talking pro-Rosenberg, pro-Hall, or something else? Fine, I’ll spoil it for you, but I’d like it noted for the record that I’m only doing so under duress. Rice finds that “courts – long understudied by and underincorporated into studies of policymaking – exert important influence at the most fundamental stage of policymaking: determining whether to pay attention to an issue” (p. 4). However, this influence is not uniform or otherwise unconditional. Rather, Rice theorizes, tests, and finds support for a conditional theory of influence. In particular, he argues that influence is going to vary across policy area and will only occur if there is both a political constituency for the area and a constitutional power of the courts to act in that area. More on those below, but Rice’s brass-tacks answer to LIGHTING THE WAY’s motivating question is (a theoretically motivated) “Yes, but it depends.”
In Chapter 1, Rice starts by providing a quick overview of the underlying literature. My eyes typically go into skim mode for literature reviews, but to do so here might be a mistake as Rice’s summary of the passive/active court perspectives does more to integrate the specific policy-making arguments that I don’t recall seeing in other sources—so much so that I starred it as something to come back to when I next teach on the topic. But, the main purpose of this chapter is for Rice to describe his theory for conditional influence. As is the case in some other high-quality work in this area (e.g., Hall 2010), Rice’s argument is that not all policy areas are created equal in terms of providing a hospitable environment for influence. The first requirement is that there must be a political constituency associated with the area. This is necessary because a court, at the end of the day, is only just a court (i.e., no purse and no sword). In order to consistently generate change, there needs to be a political constituency that “can receive, articulate, and leverage court decisions to further its interests…” (p. 29). In this regard, Rice smartly builds upon the foundation laid by Epp’s (1998) seminal work on the need for support structures – e.g., advocacy groups and funding – to aid courts in making changes in the realm of rights. If one thinks of action by the courts as sparking an initial fire, then Rice argues that the Political Constituency Condition is “a mechanism by which the fire might spread from the courts to other institutions” (p. 30). It is worth emphasizing – as Rice, himself does – that although satisfying the Political Constituency condition by itself does not guarantee unique court influence, it is sufficient for there to a reciprocal relationship between courts and other institutions (i.e., a little doubled-headed arrow like this guy ). To get to unique court influence, however, requires more. In particular, Rice argues that courts must also be “empowered through constitutional design, and particularly through the explication of rights” (p. 31), which he subsequently suggests occurs when “the language of policy is intertwined with the language of rights” (p. 32). Rice labels this the “Constitutional Power Condition.”
The primary goal of Chapter 2 is to introduce the reader to the raw data Rice subsequently uses to assess issue attention. Given the scope of what LIGHTING THE WAY seeks to examine, the first thing Rice needs to accomplish is to come up with a measure of judicial attention. Documenting issue attention in the rest of [*172] the political system is far easier, given the existence of off-the-shelf data from the Policy Agendas Project. Rice’s approach looks for indicators stemming from three judicial actors: litigants, organized interests, and judges. This is a daunting challenge since Rice is ultimately interested in assessing judicial attention to many issues across three levels of the federal judicial hierarchy and over as many years as possible. As a result, there are copious constraints on not just what would be “easy” to gather but what type of data even exist at all. Despite these challenges, LIGHTING THE WAY is no slouch when it comes to blazing an ambitious and sophisticated path with respect to its measurement tactics. To tap into litigant behavior, Rice looks to the total number of cases terminated in a year. The activity of organized interests is addressed by counting the number of cases where an amicus curiae was involved. Finally, judge attention comes from the number of published opinions. At first blush, these measures might strike one as being, well, rather primitive in nature. If you fall into this camp, I invite you to spend a few minutes trying to compile better measures across the three levels of federal courts covering roughly half a century that also identify policy areas. No, really, go try to do it, I’ll wait. Back so soon? Hmm, you seem to have aged considerably since I last saw you and, am I wrong, or are you missing some hair, too? Yeah, turns out this is not-so-trivial after all.
It is understandable, however, that a reader might wrongly conclude that Rice is just taking the “easy” way given the relative casualness with which he describes a data-collection effort that was frankly herculean in its nature. He gathered the entire population of all published lower court opinions for the lower courts (that’s both district and circuit courts) and then, as he’s done in some other published work (e.g., Rice 2017, 2019), leveraged his considerable muscle in natural language processing and supervised machine learning to automate the process of classifying the issue area for what must have been hundreds of thousands of judicial opinions. The data collection and issue classification would itself be worthy of a standalone paper describing the ins-and-outs of such an approach. If anything, my only disappointment here was that LIGHTING THE WAY gave it just a couple of paragraphs of description in the main text and a few pages in appendix.
To measure policy areas, Rice follows the venerable Policy Agendas Project, which is to the study of issue attention in public policy as the Supreme Court Database is to the study of the Supreme Court in our field. Even with as much data as Rice has, however, there are still some areas that appear only a handful of times in Rice’s data. Thus, the original nineteen categories are ultimately collapsed into a total of nine broader areas: civil rights, defense, economic activity, environment, health and science, labor, law and crime, social welfare, and transportation.
Another important aspect of Chapter 2 is that this is where Rice offers his classification of the nine policy areas with respect to the two conditions – political constituency and constitutional power – he identified in Chapter 1. No policy area is identified as lacking both a political constituency and constitutional power. The five policy areas of defense, environment, health, labor, and transportation are [*173] tagged as having a political constituency but not as having a constitutional power. Conversely, two policy areas, law/crime and social welfare, are classified as not having a political constituency but having constitutional power. Finally, the two areas of civil rights and economic activity are assessed as having both a political constituency and constitutional power.
Classified opinions in hand, the remainder of Chapter 2 reports how these quantities of interest have varied across time. Rice’s approach is to show the data grouped by his judicial actor (e.g., cases terminated in federal district courts, which is a measure of litigant attention) and then use individual sub-plots for each of the policy areas he examines. This gets the job done, but I think the more informative approach would be start with policy area as the main grouping variable and then show how all of the various measures within that area line up across time through sub-plots.
Chapter 3 tests issue attention across American macro-politics or, as Rice puts it, “whether observed changes in judicial attention to particular policy areas…are linked to the attention the system – Congress, the executive branch, and the public at large – pays to that issue area” (p. 80). To sort this question out, Rice employs a suite of methodological tools regularly utilized in the issue attention literature. In particular, he estimates a series of reduced-form vector autoregression models and then uses Granger causality tests to determine whether issue attention between two actors is unidirectional (i.e., courts influence the system or the system influences the courts but not both), bidirectional (i.e., both influence each other), or neither (i.e., nobody influences nobody). For each of the nine policy areas, Rice examines whether issue attention across his three measures – litigants, organized interests, and judges – influence issue attention on the rest of the policy-making system and, of course, whether issue attention of the policy-making system influences issue attention of litigants, organized interests, and judges. This is all to say that there is a lot going on empirically, which is why the result summaries that I provide here might seem long relative to the raw number of pages they summarize. Thankfully, Rice does an admirable job of guiding the reader through his results and deftly deploys short illustrative cases to contextualize his results.
As to those results, the modal policy area, as classified by Rice, is one where the political constituency condition is satisfied but the constitutional right condition is not. This is the case for five of the nine policy areas under analysis. In this situation, Rice expects to find a reciprocal issue attention relationship. That is, changes in issue attention within the judiciary influence the rest of the system, but the reverse is also true. Rice finds evidence of this for at least one actor in all of the policy areas with the possible exception of labor, where there is strong evidence that the system influences the courts but only weak evidence of the courts influencing the system.
The other four policy areas are evenly distributed between satisfying only the constitutional right condition (i.e., law/crime and social welfare) and satisfying both conditions (i.e., civil rights and economic activity). In terms of the former, [*174] Rice’s analyses show no strong evidence of the courts’ ability to influence the rest of the system when no political constituency exists, but whether the system can influence the courts issue attention depends. For law and crime, there is evidence that changes in the system’s issue attention is associated with changes in litigant activity for the policy area of law and crime, but no real evidence that any system-level issue attention changes in social welfare move the needle for the courts.
Rice then addresses the policy areas of civil rights and economic activity, which are the two areas where both of his theorized conditions for unique judicial influence are satisfied. That is, these are the areas where Rice expects to find that the courts influence the system but not the opposite. He finds strong support for the area of civil rights, where changes in issue attention among both litigants and organized interests are associated with subsequent changes within the broader policy-making system. Importantly, there is no significant corresponding effect of the system on issue attention among any of the three judicial actors, which means there is unique judicial influence in civil rights. Evidence for the policy area of economic activity is less strong. On the one hand, there is no significant effect of the system on any aspect of the federal court’s attention to the policy area. However, there is only weak evidence that changes in litigant issue attention generate changes in the broader system.
Viewing his results on the whole, Rice concludes that “In totality…the federal courts play an important, though limited agenda-setting role…this role can be explained in part by considering the types of policy that the courts and other institutions address” (pp. 90-91).
Chapter 4 presents LIGHTING THE WAY’s second major empirical analysis, which examines issue attention within what might be called American federal judicial “micropolitics.” Or, as Rice describes, “whether and how the Supreme Court’s activity relates to the issue attention of lower federal courts” (p. 94). To do so, Rice takes the same research strategy as done in the previous chapter but is now looking at the issue attention of the Supreme Court as one actor and the lower courts as the other. Before getting to that, however, Rice outlines his expectations for influence within the judicial hierarchy in relation to his political constituency and constitutional power conditions. He explains that the High Court’s influence on the lower courts no longer requires satisfying the political constituency condition because, as he argues, “the polices are already within the federal courts by definition…Instead, the existence of a political constituency…yields a situation in which the Court exerts considerable control over issue attention in lower courts” (p. 100). Rice similarly revises the role of the constitutional power condition given the new actors under consideration. As he states, “the courts are first among equal institutions…no matter how the [Supreme] Court’s attention to an issue may change, the utility of litigation…remains” (p. 101). As a result, “where courts have unique constitutional powers, issue attention in the lower courts should systematically predict subsequent issue attention at the Supreme Court, while the Court would likewise still be expected to regularly influence lower court issue attention” (p. 101).
[*175] In terms of results, Rice begins with the five policy areas where a political constituency exists, but the constitutional right condition is not satisfied. Rice’s expectation is that the Supreme Court can have a unique impact but that the lower courts should not similarly impact the Supreme Court. As before, he examines lower court issue attention in terms of litigants, organized interests, and judges. As hypothesized, Rice finds virtually no evidence that lower courts exert influence on the Supreme Court’s issue attention. Indeed, of the fifteen results examined (i.e., five policy areas times three levels of actors), only a single policy-actor combination provides any evidence for lower court influence. This is not much more than what one would expect to find by chance alone using a 0.05 level for rejecting the null (i.e., 1/15 ≈ 0.07). As to the converse of Supreme Court influence on the lower courts, the evidence is stronger but not quite slam-dunk level. Three of the five policy areas (defense, environment, and transportation) show at least some evidence of Supreme Court issue attention impact but the other two (health/science and labor) show none at all.
Next up, as before, are the two policy areas where there no political constituency exists but there is a unique constitutional right. Again, in contrast to the macropolitical analysis, Rice’s expectation is to find a bidirectional impact owing to the inherently judicial nature of the law/crime and social welfare policy areas. And, for the law and crime policy area he does. Changes in issue attention among litigants in the lower courts subsequently influence issue attention at the Supreme Court. Similarly, the activity of the Supreme Court affects organized interests’ issue attention in the lower courts. As in the system-wide analysis, however, the policy area of social welfare shows no systematic relationships of any kind.
Last, Rice considers civil rights and economic activity, the two policy areas where both the political constituency and unique constitutional right conditions are satisfied. Again, the theoretical expectation is distinct from the previous chapter as Rice anticipates there to be strong reciprocal relationships among the lower courts and Supreme Court. And, indeed, the data bear (someone should make a meme of this and send it to me) this out for three of the four pairwise relationships. In the realm of civil rights, Rice finds that organized interests influence Supreme Court issue attention and, reciprocally, Supreme Court activity influences lower court issue attention via litigants (there is also weak evidence that the Court’s activity influences organized interests, as well). As to economic activity, the evidence is unidirectional and suggests that lower court judges influence Supreme Court attention, but no aspect of the work done at the Supreme Court level correspondingly affects issue attention of the lower courts.
Unsurprisingly, I come away as a fan of LIGHTING THE WAY for the noteworthy contributions it makes to an important substantive and normative topic. However, I would be ducking my duty as a reviewer if I didn't pause to highlight what I see as a couple of modest shortcomings in an otherwise top-notch book. First, I wished Rice would have shown more of his thought process that led him to decide the two condition statuses for each of his nine policy areas. To be clear, I [*176] don’t look at them and see anything that strikes me as patently wrong. However, I don’t know that I could, on the basis of the information provided, code some brand new policy area that has never been seen before as to whether it satisfies the two conditions that Rice describes.
More generally, I’m not sure that Rice has entirely persuaded me that either of these conditions are best conceptualized as being static, dichotomous indicators. The size of the political constituency for the environment policy area, for example, surely has grown over the years covered by Rice’s data. On the flipside, I would hazard a guess that the strength of labor’s political constituency has decreased over time. The constitutional rights condition seems like it could be equally dynamic and non-dichotomous given that the courts themselves are ultimately determining what the Constitution means and, as a result, the extent of the breadth and depth of said rights. I don’t have a good reason to believe that these measurement “errors” would explain the pattern of results that Rice obtains, but for a project that is concerned about potentially subtle changes in issue attention, the comparatively coarse treatment of independent variables was somewhat incongruous.
These qualms notwithstanding, Rice’s LIGHTING THE WAY ambitiously addresses two important substantive holes in what we know about the impact of federal courts on public policy. First, Rice’s use of issue attention strengthens what was, at best, a weak and long-neglected bridge between the fields of public policy and law and courts. Second, even if you downplay the novelty of that contribution, Rice has provided one of the only comprehensive assessments of judicial impact across the entirety of the federal judiciary (but see also Grossmann and Swedlow 2015). Taken together, his book provides a truly significant contribution and one that over-performs relative to its comparatively short length. As a result, Douglas Rice’s LIGHTING THE WAY is a book that everyone needs to incorporate into their teaching, thinking, and writing about judicial impact.
REFERENCES:
Grossmann, Matt and Brendon Swedlow. 2015. “Judicial Contributions to US National Policy Change since 1945.” JOURNAL OF LAW AND COURTS 3(1): 1-35.
Hall, Matthew E.K. 2010. THE NATURE OF SUPREME COURT POWER. Cambridge: Cambridge University Press.
Rice, Douglas. 2017. “Issue Divisions and U.S. Supreme Court Decision Making.” JOURNAL OF POLITICS 79(1): 201-222.
Rice, Douglas. 2019. “Measuring the Issue Content of Supreme Court Opinions.” JOURNAL OF LAW AND COURTS 7(1): 107-128.
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 1st edition. Chicago: University of Chicago Press.
[*177] Rosenberg, Gerald N. 2008. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 2nd edition. Chicago: University of Chicago Press.
© Copyright 2020 by author, Ryan C. Black.
