Politics and the judiciary 225from it – but it means that the ‘politics of access’, as David Truman has
termed it, has to be conducted in a very different way. The long involved proc-
ess of the law can lead to the passage of years before a case is finally decided,
although on occasion the courts can move with remarkable speed.
Perhaps the greatest advantage of the judicial process as a decision-mak-
ing mechanism, in particular in a highly pluralistic political system like that
of the United States, is that, although the courts may become the centre of
great political controversy, the way in which they go about their work gives
their decisions a prestige and a disinterested quality very different from that
of the other branches of government. On the other hand, the facts that the
Supreme Court reaches its decisions by majority vote, that quite often very
important decisions are reached by a five-to-four majority, and that the dis-
senting justices may write powerful and persuasive opinions, indicate that
the judicial process is by no means a completely mechanical one. Informed
and learned judges can reach widely differing conclusions about the law.
One very important aspect of the judicial process is that the courts do
not operate by pronouncing general abstract rules in advance of particular
situations. They decide specific cases; although in doing this they formulate
general rules, interested parties can still argue that their particular case is
rather different and should be decided differently. If they are prepared to
risk the costs involved they may fight their case in the courts and possibly
right up through the system to the Supreme Court. At the very least this
can provide them with a powerful delaying tactic. Thus a general pronounce-
ment against segregation like that contained in the Brown v. Board of Education
decision does not result in the immediate desegregation of all segregated
schools. It results instead in a large number of cases in the courts, fought
out over a long period. It can be argued that this leads to an intolerably slow
and patchy application of the law, much less efficient than the administrative
process applying statutory rules. On the other hand, it can be argued that
this method allows for a very flexible application of the law, enabling local
conditions and special circumstances to be given full weight.
Another dimension of the way in which the courts apply the law is the way in
which lower federal courts and state courts enforce decisions of the Supreme
Court. Although the rule of stare decisis applies to the lower courts, requiring
them to observe Supreme Court rulings, in practice it is very difficult for the
Supreme Court to ensure compliance with its decisions in the thousands of
cases that come before courts all across the country. The only weapon it has is
its power to overrule lower court decisions on appeal, but the Supreme Court
can review only a tiny percentage of cases. Even lower federal courts may
modify and moderate the application of Supreme Court decisions because of
their closeness to the political situations involved in judicial decision-mak-
ing, but state courts, particularly where the judiciary is elective, are naturally
even more responsive to the local political atmosphere. State appeal courts
may be more sympathetic to the lower state courts whose decisions they must
review than to the federal Supreme Court whose rulings they should apply.