Vol. 32 No. 9 (October 2022) pp. 117-119JUDGING INEQUALITY: STATE SUPREME COURTS AND THE INEQUALITY CRISIS.
by James L. Gibson and Michael J. Nelson. New York: Russell Sage Foundation, 2021. pp. 356. Paperback: $35.00. ISBN: 9780872545039.
Reviewed by Susan B. Haire. Department of Political Science. University of Georgia. Email: cmshaire@uga.edu.
Upon reading the introduction to JUDGING INEQUALITY, one may be skeptical that this book will live up to its lofty goal: developing and testing an explanation for variation in state judicial policies that focus on political, legal, economic, and social equality. By the end of this volume, however, readers will find that the authors have achieved this goal by using an original database of 6,000 court decisions made by approximately 1,000 justices from 52 state courts of last resort. Readers will also be struck by the attention given to the theoretical framework; one that thoughtfully integrates a range of existing perspectives to develop the foundation for the empirical tests. The authors report interesting findings that raise important issues for academics and policy makers alike.
The organization of this book guides the reader through a rigorous, complex analysis. Chapter 1 outlines the increasingly important policy making role exercised by state supreme courts and the efforts by political interests to capture these courts. Among other things, this chapter also provides the foundation for the theoretical framework that explains when state supreme court justices are more likely to be in sync with the views of the state’s governing coalition. Because most historical scholarly treatments of equality tend to focus on race or gender, readers will become aware that their conceptualization includes a range of policy areas and contexts from 1990-2015.
Chapter 2 offers a clear explanation of the observation strategy, including details on the process for selecting cases in political, legal, economic, and social equality. Excluding criminal cases and workers’ comp claims, Gibson and Nelson classify cases from several policy areas and collapse these into three categories: rulings pertaining to the rights of minorities (including poor people), rulings pertaining to the rights of workers and employees, and rulings pertaining to access to the state’s justice institutions. They also carefully lay out how outcomes are measured, and in doing so, they ensure that the reader will be on the same page as the authors in understanding what constitutes a pro- and anti-equality case outcome.
Chapter 3 tests Marc Galanter’s classic work that suggests the “haves” are more likely to prevail over the “have-nots”. While this chapter initially seemed as if it was placed too early in the volume it is clear that it is an important, foundational chapter for the rest of the volume. Gibson and Nelson find support for Galanter’s premise, but only marginally so. They also find that the “haves” win more frequently when they are seeking anti-equality outcomes, even though there is substantial inter-state variation in these patterns.
In Chapter 4, Gibson and Nelson turn their attention to the 1,000 judges in their analysis. They looked more closely at traits and experiences that potentially affect judges’ views on equality. This chapter also addresses issues of measurement surrounding the concept of judicial ideology, such as explaining the tradeoffs and limits of existing measures, and by including their own approach. The empirical analysis in this chapter builds on existing expectations, including those that connect social class with policy views, testing whether a range of judicial background indicators, especially undergraduate and legal education, are related to ideology and explaining their rationale for using two indicators: the Bonica-Woodruff measure and party affiliation. Chapter 5 then considers institutional arrangements,finding that methods of judicial selection and retention do not affect the types of justices who sit on these courts.
Chapter 6 provides an empirical test of an important claim advanced in the book: if political elites are interested in shaping court policy, one would expect to find a high level of ideological congruence between the courts and those in control of the legislative and executive branches. Their bivariate analysis supports that expectation, although the strength of this relationship varies by state. Turning to measures of judicial ideology (rather than party affiliation), Gibson and Nelson find that the policy predisposition of the courts is largely explained by party control of state government, even though there is still some effect attributed to public opinion, especially on social issues. The authors also reveal a phenomenon that they dub a “judicial hangover”, where the ideological composition of a court matches an earlier (but not the current) state political regime. In their analysis, this hangover was smallest in states that used judicial elections, and largest in those where elites control appointments.
Chapter 7 tests whether ideology affects how justices vote in equality claims and whether public support for equality shapes judicial voting. Their analysis provides support for the effects of both. More conservative justices are less likely to support a pro-equality outcome; those seated on courts in states where the mass public was more supportive of pro-equality policies were more likely to vote in sync with those positions. In addition, they also found that the effect of public opinion is conditioned by the method of judicial selection. In states that use judicial elections, especially nonpartisan elections, public opinion had a stronger effect on judicial voting in equality cases.
Chapter 8 shifts the analysis to case outcomes and where it finds support for the expectation that the ideological mean of the court predicted whether the decision supported a pro-equality position. Other influences, including public opinion, were not found to affect case outcomes. Court ideology also mattered for better resourced litigants. The “haves” are only more likely to prevail if the court is predisposed to support their objective, even if it was a pro- or anti-equality position. Overall, their work finds little support for the conventional view that courts are protectors of the most vulnerable in society.
JUDGING INEQUALITY is, as described on its cover, an “empirical tour de force”. This volume and the resultant database will shape understandings of state supreme court decision making over the next several decades. It is a must-read for those who study judicial politics, including graduate students who will benefit from the rich dataset and the volume itself that provides a helpful “how-to” manual for social science research design.
© Copyright 2022 by author, Susan Haire.
