There seems little doubt that judges use these established principles to help gainacceptance of their policy designs. For that reason, for example, the National
Association for the Advancement of Colored People’s legalWght against state-
imposed segregation took place through a series of small steps over several decades,
rather than an all-or-nothing proposition that would have almost certainly failed
to produce legal reform (Tushnet 2005 ). Inevitably, when judges seek to innovate
withoutWrst laying the intellectual cornerstones for their decisions, their policies
will be met with resistance. There are ample illustrations of courts provoking
resistance by exceeding their respective legal traditions. In the United States, the
Supreme Court accelerated the outbreak of the Civil War by declaring inDred Scott
vs.Sandford( 1857 ) that slave-ownership was a right over which Congress exercised
no authority (Fehrenbacher 2001 ). In the early twentieth century, rulings that
developed and upheld a constitutional liberty of contract, such asLochnervs.
New York( 1905 ), were considered an aVront by many states that had enacted
various commercial regulations to protect the health, safety, and welfare of their
citizens (Kens 1998 ). Likewise, the modern conXict over abortion rights is, at least
in part, attributable to the Supreme Court making policy in an area (i.e. privacy)
whose legal foundations were not well established at the time of the decision inRoe
vs.Wade( 1973 ) (Hull and HoVer 2001 ). 3
5 Systemic Support
.........................................................................................................................................................................................
As should be evident by now, courts require considerable cooperation and support
from other actors as a condition for eVective policy-making. Without enforcement
power, judges must rely upon actors outside the judicial arena to give force to the
edicts emanating from the bench. When courts cultivate the support of outsiders,
those who control resources and opportunities can, in turn, oVer rewards or
impose punishments as a means of bringing about the courts’ expected changes.
This is a basic condition for eVective judicial policy (Rosenberg 1991 ).
A strong test of this assumption would be to examine the extent of implemen-
tation of any salient policy decision on an issue in which the courts are seen as
having assumed a major leadership role. No doubt one of the best cases toWt this
3 Time also seems to be a necessary correlate in this process. Taken by itself, simply having a
pretense of legal justiWcation can scarcely be suYcient. Indeed, citation to precedent is the most
frequently employed method of legal reasoning, regardless of which side of a case an opinion writer
happens to support (see, e.g., Gates and Phelps 1996 ).
546 kevin t. mcguire