Under such conditions, it will be diYcult for judges to take the lead as policy-makers. Inasmuch as they are tethered to public opinion, elected judges will be
inhibited from innovating and looking for ways to produce legal change.
Appointed judges are no less prone to be attentive to the public. Political
scientists have long recognized that even life-tenured judges may be constrained
by the law-making majority. They too evince a reluctance to challenge sitting
elected oYcials (Dahl 1957 ; Murphy 1964 ), and a good deal of scholarship shows
that, despite life tenure and no supervising authority, the members of the Supreme
Court are often mindful of the preferences of their coordinate branches and the
public as well (see, e.g., McGuire and Stimson 2004 ; Mishler and Sheehan 1996 ;
Segal 1988 ).
For appointed judges whose goals may be to craft policies that have genuine
eYcacy, the lack of enforcement power requires a reliance upon an acceptance of
their decisions. Those who stray too far from the tolerance limits of the political
system do so at the risk of their legitimacy. Thus, the institutions that govern how
judicial pronouncements are translated into public policies provide some obvious
limits on the judiciary. If judges seek to chart new ground with their legal policies,
they must consider the extent to which their policies will be accepted.
- 2 The Process of Decision-making
Perhaps more signiWcant for an understanding of judicial policy-making is an
appreciation of the mechanics of the judicial process. AtWrst glance, one might
be inclined to overlook the actual procedures by which judges render their de-
cisions and focus on the substance of those decisions. Judging strictly by the broad
array of topics to which courts address themselves—medical malpractice, employ-
ment discrimination, rights of the handicapped, labor disputes, voting rights,
privacy, commercial regulation, punitive damages, just to name a few—courts
are surely taking a leading role in the development of social and economic policies.
Given that courts touch virtually all aspects of public and private life, it is easy to
imagine that their policy purview is on a par with the elected branches. Neverthe-
less, courts face a number of important limitations that are endemic to the judicial
process. The very nature of adjudication—the set of institutions that govern how
courts make decisions—serves as a serious limitation on the extent to which courts
can generate meaningful legal change. These constraints are not immediately
obvious, but they consistently conspire to moderate the impact of judicial
outcomes. 1
1 The following is adapted from Horowtiz ( 1977 , 33 – 56 ).the judicial process and public policy 539