inform suspects who are in custody that they do not have to incriminate them-
selves. While adhering to the letter of the Court’s ruling, police have found creative
mechanisms for convincing suspects to disregard their Fifth Amendment privilege,
and judges sympathetic to the goals of law enforcement have, for their part,
likewise sought to undercut the policy’s eVectiveness (White 2003 ). In the absence
of other institutions to give force to the warnings requirement, police have been
successful in muting the inXuence of judicial policy.
Of course, when judicial policy is directed at those institutions to whom courts
must typically turn for support, it is not surprising that they encounter resistance.
Coordinate branches of government have interests of their own, and when
adjudication arises over the extent of their powers, the political branches can
balk at the prospect of judicial encroachment on their authority.
Under such conditions, one option for the political branches is simply to refuse
to recognize that they are bound by judicial policy. For example, the decision of the
US Supreme Court to invalidate the legislative veto demonstrates how such policy
can fail to be eVective. The case ofImmigration and Naturalization Servicevs.
Chadha( 1983 )—a seemingly innocuous issue of deportation of an alien whose visa
had expired—tested the ability of Congress to monitor and override the imple-
mentation of the law by the executive branch. The Supreme Court held that
this mechanism violated the separation of powers by permitting Congress to
make policy (i.e. to legislate) without presenting that policy to the president for
approval.
The decision was regarded as sweeping in its scope, inasmuch as it called into
question more federal laws than the combined total of all previously invalidated
congressional enactments. Because the legislative veto was so useful a tool by which
Congress could monitor the implementation of its policies, however, it was greeted
largely with indiVerence by legislators. Indeed, Congress continued to incorporate
this device into a great deal of subsequent legislation (Korn 1996 ). Any challenge to
the prerogatives of those upon whom judges rely for implementation support is
prone to be ineVective.
Of course, judges no doubt anticipate such reactions and often trim their sails
accordingly. Some of this strategic behavior is conditioned by institutional factors;
in England, to take one illustration, the tradition of parliamentary supremacy has
limited the independence of British judges (Stevens 2001 ). Other institutional
factors relate to the substantive powers with which diVerent branches are
entrusted. In the area of foreign aVairs, for example, courts are typically loathe to
question the decisions of elected oYcials, even when those actions might be
constitutionally questionable (see, e.g., Fisher 2004 ). In other instances, courts
recognize that their policies will likely be challenged—at the extreme, reversed by
new legislation—and they opt strategically for preserving their legitimacy over
imposing ineVective policy (Ferejohn and Weingast 1992 ). High national courts in
various countries, such as Germany and Argentina, are also forward-looking and
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