Popular Justice: Presidential Prestige and Executive Success in the Supreme Court.

Martinek, Wendy L.

By Jeff Yates. Albany, NY: State University of New York Press, 2002. 131 pp.

Political scientists have been prolific in producing studies devoted to understanding particular branches of government but less so when it comes to studies exploring the interactions between different branches of government. Jeff Yates makes a small but meaningful contribution to ameliorating this situation in Popular Justice: Presidential Prestige and Executive Success in the Supreme Court. As the title suggests, Yates is interested in understanding the extent to which presidential prestige can influence justices to decide cases in ways that are favorable to the president. The author characterizes presidential prestige as a surrogate for public opinion and, in doing so, positions his study to provide some insights into the recurrent debate over the extent to which the Court is majoritarian or counter-majoritarian. A second theme to which Yates returns throughout is the extent to which the two presidencies thesis--"the notion that presidents have more influence on other political actors when dealing with foreign and military affairs than when dealing with domestic policy concerns" (p. 23)--is relevant in the context of Supreme Court decision making.

Yates structures the analysis of how presidential prestige may influence Supreme Court decision making around three empirical chapters. In each of these chapters, presidential prestige is measured as presidential approval. Although a prima facie case can be made that approval does tap into an important dimension of prestige, prestige arguably is more than approval. Certainly, a president could suffer from low public approval ratings but still enjoy greater levels of prestige with the justices, based on their unique vantage point from which to assess the president's skills and abilities. This does not mean that Yates is incorrect to use presidential approval as one reasonable measure of presidential prestige, only to suggest that further discussion of this point is warranted given its centrality.

In the first empirical chapter (chapter three), Yates analyzes the votes of individual justices in cases dealing with "the protection or expansion of the formal constitutional and statutory powers vested in the executive office" (p. 25). After controlling for a host of other factors (including whether the justice was appointed by the president in question and whether the justice shares the president's partisanship), the final analysis suggests that presidential approval indeed does matter. Conceptualizing the underlying dynamic as a two-stage process, Yates finds that the level of approval affects whether the president appears as the petitioner or respondent, whereas the trend in presidential approval influences the likelihood of a president receiving a favorable vote. Problematically, Yates never makes clear why we should expect trends in, rather than levels of, presidential approval to matter in terms of favorable outcomes for the president. Yates further finds that, consistent with the two presidencies thesis, justices are more deferential to the president when dealing with issues pertaining to foreign or military affairs.

Chapter four continues to consider the influence of presidential prestige, this time by casting a broader net in terms of understanding presidential power. Yates persuasively argues that to understand presidential success in the Court, we must examine the extent to which federal agencies--essential actors for the advancement of presidential policy--are successful when they appear before the Court. Yates distinguishes among Cabinet, independent, and foreign policy agencies. This is useful for two reasons. First, it provides some leverage on the two presidencies thesis. Second, it takes into account the differences between executive agencies that are typically more closely tied to the president compared to quasi-judicial independent agencies. Yates's measure of presidential approval in this chapter reverts back to the level of approval, with little discussion of why level is relevant in agency cases but not in the presidential power cases of the previous chapter. Setting that issue aside, however, the evidence presented regarding the influence of presidential approval is persuasive. Yates finds that approval is influential both in its own right and conditional on the proximity of the agency to the president, with presidential approval mattering more when the agency involved is a Cabinet agency.

The most innovative part of Popular Justice comes in chapter five, with Yates's novel approach to capturing a subtler means of presidential influence: the policy signaling a president can do through State of the Union addresses and via the solicitor general. Focusing on five areas of law (civil rights, labor rights, law and order, diplomacy, and foreign defense), Yates first measures the policy signals sent by the president based on both the direction and amount of emphasis the president places on each issue in the State of the Union address. He then captures the policy signals sent through the solicitor general based on the ideological content of the solicitor general's amicus curiae filings. In both instances, Yates finds that presidential policy signals and presidential approval are consequential for the decision making of Supreme Court justices, although the effects do not manifest themselves in all issue areas.

In this slim but engaging volume, Yates has undertaken the task of extending our understanding of how presidents can influence the Supreme Court beyond the appointments process. In doing so, he offers some unique insights that should be of interest to presidential and judicial scholars alike. Considered collectively, the evidence Yates provides is quite persuasive that presidential prestige--at least as measured by presidential approval--does matter, a finding of no small importance.

--Wendy L. Martinek

Binghamton University