thus will often opt for something other than their preferred policies as a means of
preserving or strengthening their authority over the long term (Helmke 2002 ;
Vanberg 2001 ).
Similarly, judges in young Asian democracies have also had to come to terms
with elected oYcials. One interesting case occurred in Malaysia in the mid- 1980 s,
where, after a series of decisions that questioned various powers of elected
oYcials, the government sought to remove a number of judges who were regarded
as threats to its authority. Knowing that challenging the actions of elected repre-
sentatives might result in removal from oYce, ‘‘the Malaysian judiciary is a more
cautious institution’’ (Ginsburg 2003 , 80 ).
In the United States, as well, decisions that conXict with the preferences of
lawmakers and outside interests will generate eVorts to undo the rulings of the
Supreme Court (Meernik and Ignagni 1997 ). Accordingly, the justices have sought
to avoid congressional overrides of their interpretations of statutes by taking such
considerations into account when formulating their policies (Eskridge 1991 ). Al-
ternatively, when the Court concludes that it is constrained by existing law to make
decisions that will provoke public displeasure, it will often openly invite lawmakers
to overturn their policies (Hausegger and Baum 1999 ).
Examples such as these illustrate the courts’ acute awareness of the need for
systemic support. Knowing that their policies demand acceptance and support,
judges will strive to produce policy that will, in the long run, help to guarantee
their eVectiveness by sacriWcing short-term gains. Stated diVerently, courts trade
what they expect will be largely symbolic policies for a sustained level of eYcacy.
6 Conclusions
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Like any set of institutions, courts have a limited degree of policy-making capacity.
The political system provides a variety of restrictions that circumscribe their
authority. As agents of the legal system, however, courts encounter unique forces
that intervene to curb their inXuence. Among other things, bifurcated disputes
tend to limit the terms of policy debate as well as the range of options that judges
may consider. Moreover, these options are typically not presented by a represen-
tative sample of interests but rather are skewed in favor of advantaged social,
economic, and political interests. In addition, because judges make policy within
the context of legal conXicts, the various technical criteria that govern how cases
may be brought, when, and by whom insert an additional layer of complexity into
the process of judicial policy-making.
the judicial process and public policy 549