This book consists of eight essays on major cases which were decided during the 1992-3 term of the Supreme Court, plus an
introductory essay on "Personality and Process," by Rodney A. Smolla, Hanson Professor of Law, College of William and
Mary Marshall-Wythe School of Law. The more important cases profiled include: R.A.V V. CITY OF ST. PAUL (1992),
hate crime legislation; UNITED STATES V. FORDICE (1992), race discrimination in southern colleges caused by the effects
of segregation; and ZOBREST V. CATALINA FOOTHILLS SCHOOL DISTRICT (1993), aid for the handicapped
attending parochial school. The book concludes with an essay by Tony Mauro of USA TODAY, on "The Supreme Court and
the Cult of Secrecy."
Leading journalists, each of whom has in the past or is presently covering the Supreme Court, contribute an essay on a case
from the 1992-3 term of the Supreme Court. These include: Paul Barrett (Wall Street Journal), Richard Carelli (Associated
Press), Marcia Coyle (National Law Journal), Lyle Denniston (Baltimore Sun), Aaron Epstein (Knight-Ridder Newspapers),
David Savage (Los Angeles Times), and Stephen Wermiel (Wall Street Journal). Kay Kindred, a professor at Marshall-Wythe
School of Law, also contributes a case study.
The short case studies are well-written. They provide an undergraduate student in an introductory course on law or the
Supreme Court (or perhaps more appropriately a non-student reader) with the following: an introduction to factors which
influence whether an individual gets his or her day before the Supreme Court; an understanding of the plight of citizens seeking
redress from the federal courts (perhaps the most important contribution of the book), information about the cases heard in
state and federal courts prior to Supreme Court action; and views on the motivation of justices when they write majority
opinions. At times the reader is offered thoughts about possible social, political, and legal consequences of a case.
Unfortunately, readers will get little else and little in the way of a coherent analysis of Supreme Court decision-making and the
process of doctrinal change. I say this not to be rude. In the hands of a superb teacher on judicial process and constitutional
law, the stories presented in the case studies might come alive for the student -- but only when they are carefully taught in the
context of a sophisticated analysis of Supreme Court decision-making and doctrinal change.
For example, since there is no serious common framework for the analysis of these cases and no systematic comparison of
them, it is not clear what each case individually or taken together means as an exemplar of Supreme Court decision-making and
the process of doctrinal change. Worse yet, I fear that students reading the introductory chapter on personality and process and
the case studies might think that its simply the personality of the justice writing the majority opinion or a fact from his life that
explains case outcomes. In several of the case studies,
Page 52 follows:
a contributor provides a one or two page biography of the justice who write the majority opinion, along with the impression that
a specific fact in a justice's life explains the justice's approach to the case. No serious approach to Supreme Court
decision-making -- whether of the institutional, attitudinal, rational choice, law and society or some other variety -- is explored
in the book. Moreover, there is nothing in the book about the role of constitutional theory and the interpretive community,
which consists of legal scholars, court journalists, jurists, and the informed public, on doctrinal change.
Nor does Smolla justify the choice of cases presented in this book, except to say they were decided in the 1992-3 term. The
short introductions to the case chapters do not help to achieve coherence because the author offers different types of
information in each introduction. In some, he provides very brief notes on major precedents to the case discussed in a chapter;
in others, he offers a quite short histories of the law that the Court is interpreting; and, in others a too short history of a public
policy is provided. No attempt is made in the chapter introductions to link the case studies to remarks on personality and
process in the analytically weak introductory chapter.
My concern is not that Smolla should have expected these distinguished journalists to become political scientists. However, as
with any book of essays one can expect the editor seek coherence in the volume. Smolla has not provided the reader with an
adequate framework on Supreme Court decision-making, judicial process and/or doctrinal change; nor has he required the
case-study authors to respond to a uniform set of questions for inquiry in writing their case studies.
Coherence could have been provided by the addition of a final chapter which explores the implications of the stories told in
each of the case chapters -- perhaps by comparing how cases get to the Supreme Court, how they are decided, and their
impact on society. The final essay, "The Supreme Court and the Cult of Secrecy" does not build on, or really speak to, the
information presented in the case studies. Nor does it provide a serious and careful approach to many important issues which
are raised by the televising of the Supreme Court and the poor quality of evidence that is available to scholars on the inner
workings of Supreme Court because of secrecy. It is a polemical call for televising of the Supreme Court and for less secrecy.
Unfortunately, the lack of a coherent framework in the book has important consequences for young readers who are just
entering the world of judicial politics. I fear that students, and non-students, will try to fill the many gaps in the information that is
presented in the case studies (and the reasons for why the cases turned out as they did) with contemporary stereotypes about
law, individual Supreme Court justices, the Supreme Court as an institution, and the likelihood that individuals and groups will
get their day in Court. Such stereotypes are already rampant in this age of bottom-line reporting and media sound bites.