designs in the area of, say, commercial law or environmental protection, will be
unable to advance his or her goals if the cases that judge must decide involve
primarily child custody or criminal prosecutions.
Appellate courts can oVer greater opportunities in this regard, especially those
that have the ability to set their own agenda. Even among judges who can pick and
choose their cases, however, some members may be disposed to allow lower courts
the chance to Wnd sensible solutions before intervening (Perry 1991 ). Elected
oYcials, by contrast, need nothing beyond their own initiative to stimulate policy
change. They may promote reform whenever they seeWt.
Even when a court is presented with a speciWc case, there is no guarantee that the
court will be able to act. Whether a court is capable of providing genuinely
meaningful relief in a case—the requirement that a case be ‘‘justiciable’’—is a
serious limit on the actions of courts. A number of diVerent legal threads weave
together to make a case justiciable. Concepts such as adverseness, mootness, and
standing may sound esoteric to the outsider, but they are critical constraints on
what courts can do.
To take one example, in the spring of 2004 many Americans anxiously awaited
the Supreme Court’s decision as to whether the words ‘‘under God’’ in the Pledge
of Allegiance when recited by public schoolchildren constituted a violation of the
First Amendment’s prohibition against government establishing religion. When
the Court’s decision was announced, observers learned that the Court did not
address this issue at all. Rather, the justices declined to address the merits of this
salient legal question. They concluded that, since the father of the girl involved in
the legal challenge did not have legal custody of his daughter—her parents had
been divorced, and her mother had received custody—the father did not have the
legal standing to challenge the Pledge on her behalf. 2 Thus, even when asked, courts
cannot be counted upon to answer.
To many, this limitation seems perverse; shouldn’t the Court simply go ahead
and issue a ruling on the Pledge, especially after having gone to the trouble of
having the case argued? To others, it is an important feature of the adjudicatory
process that serves to ensure that policy-making is primarily in the hands of elected
oYcials. However it is conceived, a requirement that a court refrain from making a
decision until a case is properly presented surely inhibits the capacity of courts to
promote policy innovations.
Quite apart from the passive nature of courts, adjudication tends to generate
only limited amounts of information upon which to base decisions. When
Congress seeks to develop new policies in telecommunications or agriculture or
foreign policy, it gathers information, conducts committee hearings, and considers
testimony for various aVected interests. In fact, this informing function is
2 SeeElkgrove UniWed School Districtvs.Newdow[ 2004 ] 542 U.S. 1.the judicial process and public policy 541