| Review of: | The Politics of Precedent on the U.S. Supreme Court by Thomas G. Hansford, James F. Spriggs, II |
|---|---|
| Reviewed By: | Kirk A. Randazzo |
| Reviewed in: | The Journal of Politics |
| Date accepted online: | 14/01/2008 |
| Published in print: | Volume 69, Issue 04, Pages 1210-1230 |
Book Reviews
Students of the judiciary recognize that one of the primary disputes among researchers is the tension between legal influences and individual ideology in the decision making processes of judges, particularly the justices of the Supreme Court. On one side of the debate are individuals who adhere to the attitudinal model and claim that ideological preferences dominate judicial decisions. In contrast are advocates of the legal model, who contend that the law primarily influences the decision process. Until the publication of
The primary theoretical argument of the book is that the interpretation of precedent is affected by the interaction of ideological preferences and the vitality of precedent. The first aspect does not require much explanation; however, the latter aspect is a novel way to conceptualize the law. As Hansford and Spriggs argue:
[T]he justices recognize the need to legitimize their policy choice by basing them on precedent. But, not all precedents are equally capable of justifying a Court decision. The Court's ability to justify, and thus legitimize, current policies depends in part on the vitality of the precedents relied on in a decision. The incorporation and treatment of cases with greater legal authority better serves to legitimize the Court's current decisions in the eyes of those who have an interest in them, most notably those interpreting or implementing them. Importantly, the vitality of a precedent can change over time as the Court positively or negatively interprets it. Vitality, thus, is a dynamic property of precedent that fluctuates over time based on the Court's treatment of it in other cases. (p. 27)
The authors rely on
In addition to a well developed theoretical argument concerning precedent vitality, this book contains several other strengths. First, Hansford and Spriggs provide a tremendous amount of transparency in their research. Each coding scheme, measurement, or empirical model is explained thoroughly so that readers are not left guessing at how the authors conduct their analyses. Second, they employ numerous empirical methodologies, depending on the nature of the specific question addressed in a chapter, and discuss the substantive implications of their results so that readers do not need extensive statistical training to understand the findings. In their thorough examination of the interaction of ideology and precedent vitality, the authors test hypotheses related to interpretations over time, overturning precedents, use with majority opinions, and how they relate to lower courts. In sum, The
As with other examples of good research, in addition to answering several questions, this book raises others. One question in particular concerns the chapter on lower court interpretations of precedent. According to the theoretical argument developed by Hansford and Spriggs, the vitality of a precedent matters for the lower courts. Yet, as the authors acknowledge, approximately 50% of Supreme Court cases have a vitality score equal to zero (0). Does this mean that the lower courts can ignore an "unvital" precedent? How should lower court judges handle this situation? Intuitively, it seems as if the lower court judges would be inclined to favorably treat an "unvital" precedent, simply because it came from the Supreme Court, and therefore a positive interpretation seems more likely even though there is no precedent vitality. The authors do not provide any insight into these situations, and I hope that subsequent analyses address this aspect specifically to determine how lower courts handle the "unvital" precedents handed down by the Supreme Court.
In conclusion,