One characteristic of the judicial process that is distinctive from the work doneby legislative and executive oYcials is that adjudication tends to focus on a limited
range of policy alternatives. In any given case, two litigants are pitted against one
another, each asking for some speciWc remedy. All else being equal, judges regard it
as their responsibility to decide cases as narrowly as possible and develop limited,
not expansive rulings.
As Justice Louis Brandeis famously explained inAshwandervs.Tennessee Valley
Authority( 1936 ), courts should not actively seek to challenge the decisions of their
coordinate branches but rather must wait until such a question has been presented
by the litigants. Moreover, when litigants do call into question the constitutionality
of a legislative act, judges mustWrst look for some alternative grounds for resolving
the case and, barring that, attempt to construe the statute in such a way as to avoid
having to strike it down. Of course, judges can and do violate these guidelines. Even
so, judges take these admonitions seriously and generally do not actively seek to
strike down laws unless asked to do so (Howard and Segal 2004 ).
As a result of this orientation, judges often look for the most limited ways of
solving legal problems and consider only such solutions as are channeled to them
through the litigants. By contrast, legislators are not bound by such norms and are
free to consider what policies they regard as most sensible, even if those policies
constitute major departures from the status quo.
Perhaps not surprisingly, courts tend to make policies only on a step-by-step
basis. By limiting themselves to the speciWc contours of a case, judges select
solutions that are short-term in nature. Rulings are established toWt individual
cases, and whatever uncertainty remains must be clariWed by later litigation. To
take one example, the warnings that police are obligated to convey to criminal
suspects were articulated quite clearly inMirandavs.Arizona( 1966 ). Among other
things, those warnings specify that individuals do not have to respond to police
questioning once they are taken into custody.
Despite the clarity of that ruling, however, the Supreme Court left undeWned
what constituted ‘‘questioning’’ and ‘‘custody’’ for the purposes of theMiranda
decision. Because theMirandaCourt limited itself purely to the warnings required
by the Fifth Amendment, not addressing the deWnition of their terms, those issues
had to be resolved in subsequent cases. Of course, the deWnition of such terms is a
common legislative practice; it reduces ambiguity and allows for a common
understanding of the meaning of policy enactments. Surely, judges can foresee
the need for clarifying the meaning of a ruling, but the judicial process dictates that
those questions be addressed on an individual basis in later cases.
The reason courts tend not to act preemptively is that policy-making through
adjudication requires that judges be presented with a genuine legal controversy that
plainly presents the issues that judges wish to address. Stated diVerently, courts do
not speak until spoken to. Thus, judges who might have particular policy goals
must await an appropriate case in which to craft their policies. A judge who has
540 kevin t. mcguire