chapter 27
...................................................................................................................................................THE JUDICIAL PROCESS
AND PUBLIC POLICY
...................................................................................................................................................kevin t. mcguire
Courts are curious institutions. Unlike elected bodies that regard governing as their
explicit responsibility, members of the judiciary are often less certain about their
function within the polity. To be sure, legislative and executive oYcials frequently
disagree about the types of policies that should be enacted. Questions such as ‘‘To
what degree should the state regulate economic and social aVairs?’’ and ‘‘What
should be the government’s priorities in foreign aVairs?’’ are some of the basic
issues with which representatives must come to terms. Regardless of the role they
believe that government should play, however, elected representatives scarcely
doubt that it is their obligation to establish the rules that order relations in society.
Judges, by contrast, must ask themselves not only what policies are appropriate
but also whether they should be making them in theWrst place. For some, courts
are major decision-makers that function as principals on a par with legislators
and executives in developing, monitoring, and adapting public policies. Others
take quite the opposite view, envisioning courts as more modest institutions
whose functions involve arbitrating public and private disputes by doing little
more than faithfully interpreting existing law. And it is not merely judges who have
this ambivalence. These divisions about the role of courts exist among other
policy-makers as well as businesses, organizations, and the mass public.
Such disagreements about whether judges should lead or follow in the process of
governing presuppose that courts actually have the capacity to eVect policy