224 Politics and the judiciary
fact that court decisions have such vital significance for government, and the
general litigious tendencies of Americans all give much work to lawyers. The
legal profession is also the path to public office in the other branches of gov-
ernment: half the members of the Congress are lawyers. Furthermore, the
legal system provides unique opportunities for combining the practice of law
with a political career. An essential stage in the process of law enforcement is
that of deciding when enough evidence has been accumulated in a particular
case to warrant a prosecution. This function is entrusted to the district attor-
neys, who are therefore able to exercise considerable discretion in deciding
whom to prosecute, and are potentially in a position of considerable political
power and influence. In the states these officers are usually elected, and they
can and do use their office for electoral purposes. The crusading district at-
torney and the district attorney who is subservient to local political interests
may be stereotypes of fiction, but they are by no means unknown in real life.
Many political careers are begun at this level, and the state governor’s man-
sion, the Senate or the House of Representatives, even the Supreme Court
itself, may be the eventual haven of a former prosecutor. As well as deciding
which cases to prosecute, the district attorney’s office is also responsible for
the actual conduct of the prosecution in the court, providing an opportunity
for a dramatic public performance.
At the federal level, the enforcement of law is in the hands of the De-
partment of Justice headed by the Attorney General. In each federal judicial
district there is a United States attorney who, unlike his counterpart at the
state level, is an appointed official. The Solicitor General supervises the work
of the United States attorneys and represents the federal government be-
fore the Supreme Court. The Federal Bureau of Investigation performs the
police functions of the federal government, and other sub-divisions of the
Department of Justice supervise various areas of law enforcement such as
civil rights, anti-trust actions and the laws regarding immigration.
The judicial process
Considerable emphasis has been placed in the present chapter on the poli-
cy-making role of the American judiciary, and its importance is indeed con-
siderable; however, it must be noted that there are considerable limitations
upon the ability of courts to perform this function. The nature of the judicial
process restricts the courts to a rather different role from that of the other
branches of government. The courts cannot initiate action. They must wait
for cases to be brought before them for decision. If the constitutionality of a
particular piece of legislation is not challenged in court, then the courts can-
not pronounce upon it. The courts do not have the resources for gathering
and assessing information that are available to the legislature or the execu-
tive, but must depend upon the briefs that litigants submit to them. On the
other hand, they are not subject to the same overt pressure as other branches
of government. This is not to say that pressure groups ignore the courts – far