change—the ability to bring about meaningful reform—and that the work that
courts do has major consequences for the various constituencies that are touched
by the decisions of judges. It is not at all clear, though, that courts possess the
policy-making capacity necessary to bring about such change. Nor is it obvious
that the policies of courts bring about the reforms that are intended.
Just how well suited are courts to making policy? Are judges capable of actually
producing changes within society? In this chapter, I consider a number of issues
related to the judicial process with an eye towards illuminating the policy capacities
that courts possess and the impact of their decisions. SpeciWcally, I discuss the
conditions that must be met in order for courts to make eVective policy and then
describe how several of the basic features of the judicial process undermine
realizing those conditions. To illustrate, I will draw on several diVerent strands of
research that underscore various problems that are endemic to judges serving as
policy-makers. Since the bulk of scholarly research on judicial policy-making
examines the United States, most of my illustrations involve American courts.
Still, political scientists are increasingly interested in courts outside the USA, and
I rely upon this growing body of research as well. My purpose is not to suggest that
courts in the USA or elsewhere are ineVective policy-makers. Rather, I try to
temper the expectations about what courts can do by describing how judges, like
any set of governmental actors, face certain institutional constraints that limit their
policy ambitions.
1 Conditions for Effective
Policy-making
.........................................................................................................................................................................................
For quite some time, lawyers, judges, and scholars took it on faith that the policies
handed down by courts were just as signiWcant as the enactments of legislatures,
indeed in some cases even more so. After all, beginning in the 1950 s, the Supreme
Court of the United States entered the fray over some of the most visible issues
within society, crafting major legal reforms in such policy areas as the freedoms of
speech, press, and religion, the rights of the criminally accused, and racial discrim-
ination. As a result, the American courts now address such issues as abortion, the
right to die, the death penalty, gender discrimination, aYrmative action, regulation
of the Internet, legislative apportionment, and property rights, as well as questions
of legislative, executive, and state power. The Court’s decisions in these areas are
regarded as particularly consequential; since many involve interpretation of
the US Constitution, there is eVectively no recourse—save the unlikely route of
536 kevin t. mcguire