amending the Constitution—for elected oYcials who might seek to modify or
undo judicial policies that theyWnd disagreeable.
Over the pastWfteen years, however, researchers have begun to look closely at the
actual consequences of judicial policy-making and have found the results to be far
more variable than had been assumed. In light of theseWndings, scholars have
reassessed the subject of judicial capacity, thinking with greater care about the
conditions that must be met in order for the decisions of judges to produce sign-
iWcant policy change. That courts announce signiWcant policies does not necessarily
mean that those policies are followed or have pronounced eVects for society.
One of the most important assessments of the impact of courts can be found
in Gerald Rosenberg’s ( 1991 ) analysis of several of the Supreme Court’s most
prominent policy domains. His work delineates both the institutional constraints
that courts face and the several ‘‘conditions for eYcacy,’’ that is, the circumstances
that must obtain if courts are to be truly eVective policy-makers ( 1991 , 10 – 36 ). In
particular, he argues that the legal system requires courts to operate within the
traditions and language of the law; thus, judges who are inclined to create major
policy innovations must still be able to trace those policies to a widely shared
understanding of the Constitution and its laws. Moreover, whatever the policy
ambitions of judges, they are inevitably constrained by the courts’ lack of an
enforcement power and consequently their reliance upon popular support for
their decisions.
In light of these considerations, courts must lay the legal groundwork for change
by institutionalizing a series of precedents upon which to build their policies. Once
those policies are established, there must be a reasonable amount of acceptance by
both the public and elected oYcials. To the extent that there is resistance to judicial
policy, government oYcials must be willing to oVer rewards or punishments to
bring about implementation.
In short, because courts lack the ability to put their rulings into eVect, they must
depend upon the goodwill of others to act on their behalf. The greater care courts
take in establishing the legitimacy of their rulings, the more likely they are to be
supported by those who can create the conditions necessary for implementors to
carry out the courts’ will.
2 Characteristics of Courts
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Are courts well situated to meet these conditions? Judges have both formal and
informal characteristics that facilitate their policy-making; they possess the
the judicial process and public policy 537