Steven Schier, The Daily Record Newswire
Check an American government textbook nowadays, and you will find policymaking described as a central function of America’s courts. The 2012 edition of American Government: Power and Purpose by four leading political scientists describes the federal judiciary as composed of “legislators in robes.”
Few, if any, other constitutional democracies grant courts the policymaking powers found in America’s contemporary judiciary. Such court behavior is not a new phenomenon, but one created by a revolution in the federal judiciary’s role beginning in 1954 and consummated during the 1960s and 1970s. In 1984, political scientist Herbert Jacob defined the then-new trend away from traditional norm enforcement and toward judicial policymaking: “The difference lies in the intended impact of the decision. Policy decisions are intended to be guideposts for future actions; norm enforcement decisions are aimed at the particular case at hand.”
The impetus for expanded policymaking came from the Supreme Court, specifically the court headed by Chief Justice Earl Warren from 1954 to 1968. In a series of sweeping decisions — most during the 1960s — the Warren Court created national policy regarding racial integration, state and local criminal justice, conditions in state and local prisons, school prayer, the personal right to privacy, and state and federal legislative apportionment.
In these decisions the Warren court indeed set guideposts for a big variety of federal, state and local government actions. Accompanying the audacious policymaking of the Supreme Court were changes in legal rules and federal court practices during the 1960s and 1970s that made policymaking much more common by federal judges — institutionalizing the practice.
Congress, for its part, abetted judicial policymaking by passing many new domestic laws in the 1960s and 1970s that permitted adjudication as a means of enforcement. The number of judicial branch personnel grew considerably as well. Presidents, consumed by their duties, conceded the importance of judicial policymaking by emphasizing ideological considerations in federal judicial appointments.
Judicial appointment politics gradually became beset by partisan polarization in the Senate. New judicial policymaking avenues spurred the creation and activity of many interest groups. In the 1960s, a “liberal legal network” formed to vigorously pursue policy change through the courts. This produced a counter-mobilization of think tanks and interest groups promoting a conservative judicial agenda. The impact upon America’s national political system was great, creating a complex, elite arena of policymaking dominated by legal professionals and interest groups.
A major result was, according to legal scholar Ran Hirschl, “the judicialization of politics — the reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies . . . arguably one of the most significant phenomena of late twentieth and early twenty first century government.”
Judicial politics involved complex battles by political elites. Its guiding force is federal judges appointed for life. Popular accountability is largely lacking from this new policymaking arena, except through the indirect mechanism of presidential and senatorial elections. The public never voted to make judges “legislators in robes” and until the 1960s and 1970s, federal courts rarely operated as such.
Federal courts since 1960 have effectively “judicialized politics.” According to political scientists John Ferejohn, the federal courts “have been increasingly able and willing to impose substantive limits on the power of legislative institutions… have increasingly become places where substantive policy is made” and “have been increasingly willing to regulate the conduct of political activity itself — by . . . interest groups, political parties, and both elected and appointed officials.” Many state courts have followed the policymaking lead of the federal courts. The courts’ new power seems here to stay.
This is not to say that the federal judiciary runs every aspect of our national political system. They have limited agenda power, in that they must wait for a dispute to be brought before them by others before a policy judgment can be made. They also are bound by past precedents, and overturning a prior precedent is a major, rare and controversial event. Federal courts also must depend on the Congress and president to formally comply with their decisions.
If federal and state courts don’t make policy with impunity, the new judicial system that evolved in the 1960s and 1970s gave courts more policymaking clout than ever before in American history. It is fair to ask if courts are well designed for their expanded policymaking functions. To make policy well, one must have a command of all relevant facts, understand a wide variety of related controversies, address problems as they arise and review present policy in an appropriately timely manner.
Legal scholar Donald Horowitz holds that courts are poorly designed to create policy in this fashion, for several reasons. First, adjudication is focused on one particular adversarial controversy and does not more broadly consider facts and principles of related controversies. Courts cannot fully consider an array of alternatives and thoroughly match benefits and costs among them.
Second, a court opinion is “piecemeal” in that it can only address specific issues in the controversy before the court. It can take a lengthy parade of decisions to fashion a comprehensive policy. For example, federal policy regarding school integration evolved over several decades as the Supreme Court dealt over time with specific controversies.
Third, courts can only rule when litigation arrives before them, not in timely response to the onset of public problems. Courts “only act when litigants call” and so must depend upon the chance appearance of policy problems on their dockets. A lack of control and coordination across cases often results.
Fourth, judicial fact-finding is narrow and often is not based on a broad consideration of necessary evidence. “The potentially unrepresentative character of the litigants makes it hazardous to generalize from their situation to the wider context.”
There is also the question of democratic accountability. If many judges are appointed for life and are making policy, are they operating democratically in such policymaking? As a leading text on American courts by Robert Carp, Ronald Stidham and Kenneth Manning puts it: “In a democracy, broad matters of public policy are, at least in theory, presumed to be left to the elected representatives of the people – not to judicial appointees with life terms. In principle, U.S. judges are not supposed to make policy, but in practice they cannot help but do so to some extent.”
A key consequence is that much policy previously decided by popular participation in elections is now determined by legal professionals. With courts, litigious interest groups and legal professionals controlling important policy areas, one result, according to political scientist Calvin MacKenzie, is “a diminished system-wide ability to construct proper foundations of popular support for new policy initiatives.” Popular discontent with government rises.
Federal court policymaking is another triumph of professional government. It is well entrenched because it is supported by interest groups of the left and right, the many ideological activists populating both major parties, and compliant senators who respond to kindred activists and interest groups by making federal judicial confirmations an ideological and partisan battle zone.
Conservatives argue for judicial “restraint,” meaning a more conservative turn in federal court policymaking. Liberals, seeking judicial activism for “social justice” in contrast promote a liberal turn. But everyone involved knows the federal courts make much important national policy.
Most of the public is not involved. The courts’ expansion of professional government reinforces many Americans’ distrustful distance from their national rulers.
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Steven Schier is Congdon Professor of Political Science at Carleton College in Northfield, Minnesota.
