Judicial Review in State Supreme Courts: A Comparative Study
Spill, Rorie L., Justice System Journal
Judicial Review in State Supreme Courts: A Comparative Study, by Laura Langer. Albany: State University of New York Press, 2002.
Several years ago, I reviewed Sam Lopeman's book The Activist Advocate, which investigated activist decision making on several state supreme courts. I began the review by noting that Lopeman "takes us where many have often lamented we need to go, but where few have actually traveled: to the state high courts." This statement is equally true of Laura Langer's impressive and academic study of judicial review across the state high courts. Indeed, Langer's study surpasses many earlier studies by its breadth and its sophistication. While she is only able to examine four substantive areas of law, she does not limit the states examined. This inclusive aggregate examination is a large step forward for the study of state judicial behavior, and one that is welcomed by the discipline. Additionally, Langer does not eschew the complexities of her questions; she uses sophisticated methodological estimation techniques appropriate to the two questions of under what conditions will a state supreme court docket or overturn a law promulgated in the areas of worker's compensation, campaign and elections, unemployment compensation, and welfare benefits.
Her study presents a significant step forward in our knowledge of state judiciaries, as well as in our understanding of the effects of strategic behavior. She finds that overall ideology is not the sole contributor to judicial decision making. Indeed, the ideology of the justice and its distance from the other key state government players are intrinsically important to the exertion of judicial review. However, this condition alone does not determine the use of this power. Institutional rules, political context, and a lack of electoral salience may provide shields for justices to vote sincerely even if they are ideologically distant from other state government actors.
Before Langer embarks on her analyses, she logically and carefully introduces her topic in chapter 1; however, those unfamiliar with the general literature on judicial review, sophisticated maximum likelihood methodologies, and positive political theory (rational choice) may find this chapter a bit daunting. It is here we are introduced to her several research questions, and where she begins to set the stage for the importance of this study. Indeed, she is making several related arguments that work together to reveal the use of judicial review across the states, its variations, and its power. Additionally, she contends that the diversity across the states provides greater opportunity to understand what determines when justices will use this potentially countermajoritarian power. We also learn that this study remains true to the tradition of individual-level analyses of individual judges that sit on collegial courts and produce collective decisions. Chapter 2 continues the introduction and is essentially a literature review focusing on the United States Supreme Court. This chapter is brief and necessary.
Chapter 3 nicely sets up reasons for, and conditions and limitations on, strategic behavior. Langer uses the separation of powers literature developed for the federal system and builds in the complexities of the states to show how variations in institutional structure may play out in state high courts. Her hypotheses are clearly delineated and well substantiated. Langer provides a great deal of anecdotal evidence here that supports her suppositions. More important, Langer uses her considerable breadth of data to provide more context to the typical assumption that justices worry about overrides or reversals. She identifies several conditions that would inhibit sincere voting, and encourage strategic behavior. These conditions vary across state supreme courts, thus setting up an intricate and promising study. For example, rather than assuming that all state supreme court justices must equally fear reversal via amendment, Langer examines the procedures in each state to determine in which it is easier to amend the state constitution. …