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Judicial Process in America

Judicial Process in America

  • Robert A. Carp - University of Houston, USA
  • Kenneth L. Manning - University of Massachusetts Dartmouth, USA
  • Lisa M. Holmes - University of Vermont, USA
  • Description

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  • The Annotated Constitution in the book’s appendix features the authors’ explanatory comments for each of the document’s articles and sections, offering context and references to landmark cases.
  • Chapter summaries help focus students’ study and review.
  • Further Thought and Discussion Questions promote critical thinking and reflection on key chapter points.
  • Annotated Suggested Resources list books, journal articles, and websites, offering students guidance for further research.
  • U.S. political scene updates driven by the recent change in the U.S. presidency; including the shift in presidential strategy for filling court appointments, changes in the Supreme Court composition, the role of courts in terrorism, and more.
  •   Advancements in U.S. state level changes with coverage of the movement of tort reform, examples of state legislative exertion of force on judge selection, and more. 
  •   Coverage of modern events ; including, the legality of the Affordable Care Act and DREAMers, how to address the issues of immigration and deportation, status of abortion rights, transgender person issues, changes in issues with same-sex marriage, studies behind the decision patterns of the three women on the supreme court, and the impact Trump has had on the partisan composition of the courts. 
  •   Inclusion of more data on the voting patterns of the U.S. trial judges appointed by Obama, and for the first time, empirical data on the voting behavior of Trump’s trial court jurists. 
  •   New websites recommended at the end of each chapter for students to conduct further research the material. 
  •   COVID-19’s impact on the administration of federal courts. 
  • Reduced content by 10%
  • New discussion of  the impact of Covid-19 on the administration of the federal courts and state judicial administration
  • Updated content on the  expanding role of state supreme courts in important areas of policymaking such as same-sex marriage and legislative apportionment.
  • New  discussion on how judicial restraint squelched attempts by former President Trump and his allies to overturn the 2020 presidential election.
  • Substantial changes to Chapter 6 including attention to Trump’s nominees and the consequences of filibuster reform, a broader focus on “The Consequences of Lifetime Tenure” is brought to bear on the discussion of impeachment and recall of judges, and new content concerning when and how judges vacate their seats.
  • A new preliminary analysis of President Biden’s judicial nominations and his judicial appointment strategy.
  • Statistics have been updated throughout, and the material on the death penalty has been pulled into a separate section, expanded, and updated to reflect the resumption of federal executions late in the Trump presidency.
  • The trial of former Milwaukee police office Derek Chauvin for the murder of George Floyd is used to illustrate the various stages of a criminal trial. 

Preview this book

Sample materials & chapters.

CH01 - Foundations of Law in the United States

CH02 - The Federal Judicial System

For instructors

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Constitutional Law for a Changing America

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The Oxford Handbook of Political Institutions

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The Oxford Handbook of Political Institutions

27 The Judicial Process and Public Policy

Kevin T. McGuire is Associate Professor in the Department of Political Science, University of North Carolina.

  • Published: 02 September 2009
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This article considers several issues that are related to the judicial process. It aims to shed some light on the policy capacities that the courts possess, as well as the impact of their decisions. The chapter focuses on the conditions that must be met in order for the courts to make effective policy. It describes how several of the basic features of the judicial process actually undermine the realization of those conditions. The discussion draws on several different strands of research that underscore different problems that are common to judges serving as policy-makers.

Courts are curious institutions. Unlike elected bodies that regard governing as their explicit responsibility, members of the judiciary are often less certain about their function within the polity. To be sure, legislative and executive officials frequently disagree about the types of policies that should be enacted. Questions such as “To what degree should the state regulate economic and social affairs?” and “What should be the government's priorities in foreign affairs?” are some of the basic issues with which representatives must come to terms. Regardless of the role they believe that government should play, however, elected representatives scarcely doubt that it is their obligation to establish the rules that order relations in society.

Judges, by contrast, must ask themselves not only what policies are appropriate but also whether they should be making them in the first place. For some, courts are major decision-makers that function as principals on a par with legislators and executives in developing, monitoring, and adapting public policies. Others take quite the opposite view, envisioning courts as more modest institutions whose functions involve arbitrating public and private disputes by doing little more than faithfully interpreting existing law. And it is not merely judges who have this ambivalence. These divisions about the role of courts exist among other policy-makers as well as businesses, organizations, and the mass public.

Such disagreements about whether judges should lead or follow in the process of governing presuppose that courts actually have the capacity to effect policy change—the ability to bring about meaningful reform—and that the work that courts do has major consequences for the various constituencies that are touched by the decisions of judges. It is not at all clear, though, that courts possess the policy-making capacity necessary to bring about such change. Nor is it obvious that the policies of courts bring about the reforms that are intended.

Just how well suited are courts to making policy? Are judges capable of actually producing changes within society? In this chapter, I consider a number of issues related to the judicial process with an eye towards illuminating the policy capacities that courts possess and the impact of their decisions. Specifically, I discuss the conditions that must be met in order for courts to make effective policy and then describe how several of the basic features of the judicial process undermine realizing those conditions. To illustrate, I will draw on several different strands of research that underscore various problems that are endemic to judges serving as policy-makers. Since the bulk of scholarly research on judicial policy-making examines the United States, most of my illustrations involve American courts. Still, political scientists are increasingly interested in courts outside the USA, and I rely upon this growing body of research as well. My purpose is not to suggest that courts in the USA or elsewhere are ineffective policy-makers. Rather, I try to temper the expectations about what courts can do by describing how judges, like any set of governmental actors, face certain institutional constraints that limit their policy ambitions.

1 Conditions for Effective Policy-making

For quite some time, lawyers, judges, and scholars took it on faith that the policies handed down by courts were just as significant as the enactments of legislatures, indeed in some cases even more so. After all, beginning in the 1950s, the Supreme Court of the United States entered the fray over some of the most visible issues within society, crafting major legal reforms in such policy areas as the freedoms of speech, press, and religion, the rights of the criminally accused, and racial discrimination. As a result, the American courts now address such issues as abortion, the right to die, the death penalty, gender discrimination, affirmative action, regulation of the Internet, legislative apportionment, and property rights, as well as questions of legislative, executive, and state power. The Court's decisions in these areas are regarded as particularly consequential; since many involve interpretation of the US Constitution, there is effectively no recourse—save the unlikely route of amending the Constitution—for elected officials who might seek to modify or undo judicial policies that they find disagreeable.

Over the past fifteen years, however, researchers have begun to look closely at the actual consequences of judicial policy-making and have found the results to be far more variable than had been assumed. In light of these findings, scholars have reassessed the subject of judicial capacity, thinking with greater care about the conditions that must be met in order for the decisions of judges to produce significant policy change. That courts announce significant policies does not necessarily mean that those policies are followed or have pronounced effects for society.

One of the most important assessments of the impact of courts can be found in Gerald Rosenberg's (1991) analysis of several of the Supreme Court's most prominent policy domains. His work delineates both the institutional constraints that courts face and the several “conditions for efficacy,” that is, the circumstances that must obtain if courts are to be truly effective policy-makers (1991, 10–36). In particular, he argues that the legal system requires courts to operate within the traditions and language of the law; thus, judges who are inclined to create major policy innovations must still be able to trace those policies to a widely shared understanding of the Constitution and its laws. Moreover, whatever the policy ambitions of judges, they are inevitably constrained by the courts' lack of an enforcement power and consequently their reliance upon popular support for their decisions.

In light of these considerations, courts must lay the legal groundwork for change by institutionalizing a series of precedents upon which to build their policies. Once those policies are established, there must be a reasonable amount of acceptance by both the public and elected officials. To the extent that there is resistance to judicial policy, government officials must be willing to offer rewards or punishments to bring about implementation.

In short, because courts lack the ability to put their rulings into effect, they must depend upon the goodwill of others to act on their behalf. The greater care courts take in establishing the legitimacy of their rulings, the more likely they are to be supported by those who can create the conditions necessary for implementors to carry out the courts' will.

2 Characteristics of Courts

Are courts well situated to meet these conditions? Judges have both formal and informal characteristics that facilitate their policy-making; they possess the authoritative power to resolve legal disputes, and in doing so they are generally accepted as legitimate, enjoying the esteem of both the public and other government officials. At the same time, there are a number of distinctive characteristics of the judicial process that complicate the ability of courts to bring about effective policy change.

2.1 Judicial Selection

Both across and within countries, judges vary a good deal in the mechanisms by which they are chosen, and different methods of selection create various incentives for judges, which do not necessarily enhance independent policy-making. In England, for example, lower court judges are selected by the Lord Chancellor, in consultation with local advisory boards, while appellate judges are chosen (at least nominally) by the prime minister, who receives advice from the Lord Chancellor and a committee for judicial appointments (Kritzer 1996 ). For quite some time, selection was largely a function of political patronage, thus making it attractive for judges to bring political considerations to bear in their decisions (Drewry 1993 ). In its modern manifestation, however, it is a system that tends to place greater emphasis on the qualifications of judges (Griffith 1991 ; Kritzer 1996 ).

In the United States, by contrast, the vast majority of the judiciary is elected. Most American judges are creatures of state government, and most states opt for some form of election for their judicial officials. As a result, there is little guarantee that the people most competent to serve as judges will be selected. Indeed, voters know precious little about candidates for judicial office (Klein and Baum 2001 ). Much has been made of this apparent weakness, and since judging requires fidelity to the law, not politics, reformers often argue that members of the bench should be selected by some form of independent commission that can evaluate the objective qualifications of potential jurists. This, it turns out, is not as serious a limitation as critics charge, since the same types of individuals who are disposed to be judges have fairly consistent professional backgrounds; thus, the same sorts of people end up being chosen, regardless of the method of selection (Glick and Emmert 1987 ). In terms of their qualifications, those who are elected resemble very closely those who are appointed.

The same cannot be said, however, about their voting behavior. For those judges who are elected, the very incentives that guide the actions of popular policy-makers often end up motivating their decisions as well. Thus, for example, judges who are about to stand for re-election engage in strategic behavior, frequently voting in ways that will not alienate the electorate (all 1992 ). Judges are (theoretically, at least) obligated to make decisions in light of what the rule of law dictates, and in practice, of course, they may not be able to realize that goal. But, when elected judges are guided by a desire to satisfy constituents, they forgo the pursuit of it.

Under such conditions, it will be difficult for judges to take the lead as policy-makers. Inasmuch as they are tethered to public opinion, elected judges will be inhibited from innovating and looking for ways to produce legal change.

Appointed judges are no less prone to be attentive to the public. Political scientists have long recognized that even life-tenured judges may be constrained by the law-making majority. They too evince a reluctance to challenge sitting elected officials (Dahl 1957 ; Murphy 1964 ), and a good deal of scholarship shows that, despite life tenure and no supervising authority, the members of the Supreme Court are often mindful of the preferences of their coordinate branches and the public as well (see, e.g., McGuire and Stimson 2004 ; Mishler and Sheehan 1996 ; Segal 1988 ).

For appointed judges whose goals may be to craft policies that have genuine efficacy, the lack of enforcement power requires a reliance upon an acceptance of their decisions. Those who stray too far from the tolerance limits of the political system do so at the risk of their legitimacy. Thus, the institutions that govern how judicial pronouncements are translated into public policies provide some obvious limits on the judiciary. If judges seek to chart new ground with their legal policies, they must consider the extent to which their policies will be accepted.

2.2 The Process of Decision-making

Perhaps more significant for an understanding of judicial policy-making is an appreciation of the mechanics of the judicial process. At first glance, one might be inclined to overlook the actual procedures by which judges render their decisions and focus on the substance of those decisions. Judging strictly by the broad array of topics to which courts address themselves—medical malpractice, employment discrimination, rights of the handicapped, labor disputes, voting rights, privacy, commercial regulation, punitive damages, just to name a few—courts are surely taking a leading role in the development of social and economic policies.

Given that courts touch virtually all aspects of public and private life, it is easy to imagine that their policy purview is on a par with the elected branches. Nevertheless, courts face a number of important limitations that are endemic to the judicial process. The very nature of adjudication—the set of institutions that govern how courts make decisions—serves as a serious limitation on the extent to which courts can generate meaningful legal change. These constraints are not immediately obvious, but they consistently conspire to moderate the impact of judicial outcomes. 1

One characteristic of the judicial process that is distinctive from the work done by legislative and executive officials 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 specific 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 in Ashwander vs. 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 must first 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 specific contours of a case, judges select solutions that are short-term in nature. Rulings are established to fit individual cases, and whatever uncertainty remains must be clarified by later litigation. To take one example, the warnings that police are obligated to convey to criminal suspects were articulated quite clearly in Miranda vs. 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 undefined what constituted “questioning” and “custody” for the purposes of the Miranda decision. Because the Miranda Court limited itself purely to the warnings required by the Fifth Amendment, not addressing the definition of their terms, those issues had to be resolved in subsequent cases. Of course, the definition 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 differently, 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 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 offer 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 find sensible solutions before intervening (Perry 1991 ). Elected officials, by contrast, need nothing beyond their own initiative to stimulate policy change. They may promote reform whenever they see fit.

Even when a court is presented with a specific 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 different 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 officials. 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 affected interests. In fact, this informing function is considered to be an implicit part of the legislative power. Judges, though, resolve cases with an eye towards crafting legal solutions that are consistent with their notions of what the law permits or requires. Courts are not supposed to assess the wisdom of policy, only its validity.

Nevertheless, judges are inevitably drawn into considering how their interpretations of the law will affect different segments of society, whether their resolution of a dispute will make sense as a matter of public policy for those who are consumers of their decisions. Although cases are ostensibly disputes between two individual litigants, those litigants, as often as not, are drawn from larger populations that stand to win or lose by a case's outcome. Thus, a decision in a case in which a single corporation is a party may affect an entire industry. A case in which a state is a party may be one which many other states watch with interest, since they are apt to feel the effects of the decision. And so on.

Unlike legislators, however, courts have little capacity to summon additional information to inform their decisions. They must rely instead upon the abstract arguments of law presented by the parties to a case. In some courts, affected interests have the opportunity to inform judges through their participation as amici curiae (that is, as “friends of the court”). Again, however, judges have little control over the source or quality of this information. In this respect, they are at a distinct disadvantage relative to elected officials who, as a routine matter, seek to gather as much information and analysis as they deem useful on the impact of various policy alternatives.

Finally, courts differ from other decision-makers in that the judicial process does not provide for regular monitoring and oversight of the policies crafted by judges. Naturally, judges can adjust policies through subsequent litigation, but there is no formal mechanism by which judges can examine the ongoing impact of their policies. That adjudication does not provide such mechanisms means that courts will not learn in a timely way—if indeed they learn at all—that the policies they have put into place may be failing to realize their objectives.

These limitations notwithstanding, judges on both trial and appellate courts are generally quite competent in discharging their responsibilities, and many of their policies clearly produce important, substantive change for various segments of society. A great deal of scholarly work, in fact, demonstrates that courts can be the source of significant innovations in the policy priorities of government (see, e.g., Glick 1991 ; Rowland and Carp 1996 ).

For their part, legislative and executive officials are by no means immune from suffering the fate of ineffective or ill-considered policy. Any governmental institution is limited by various handicaps that hamper what they may achieve. As a comparative matter, there are a number of important factors that differentiate legal from political policy-makers, and these factors serve to place somewhat greater limits on the members of the judiciary than they do officials who are popularly chosen.

3 Actors in the Judicial Process

Judges are the central players in the business of judicial policy-making. They weigh alternatives and craft authoritative rules that affected constituencies are obliged to respect. Because the development of those rules is so contingent upon decisions made by others (decisions about when to go to court, what arguments to present, and the like) any attempt to understand the links between the judicial process and judicial policy-making requires that one consider with special care the role of other actors in the legal system.

Foremost among those are the litigants themselves. Courts, as I have noted, are passive institutions that require genuine legal controversies within which to develop policies. For that reason, the decision to go to court is crucial for creating the opportunities necessary for judges to advance their legal policy goals.

On the one hand, the sheer size of court caseloads at both the federal and state levels suggest that judges are not lacking for legal vehicles in which to develop policy. On the other hand, the evidence also suggests that most potential conflicts tend not to make it before judges. Instead, cases are either settled or never initiated in the first place. In criminal cases, prosecutors and defense attorneys frequently opt to plea bargain (Heumann 1978 ; Mather 1979 ), and consequently many of the cases that might otherwise be brought before a judge are resolved by a defendant agreeing to accept a guilty plea in exchange for some form of consideration from the prosecutor.

In the case of civil disputes, much has been made of the tendency for individuals to avail themselves of courts at the slightest provocation. Objective assessments of the flow of litigation, though, suggest that the notion of a litigation crisis is vastly oversold (Galanter 1983 ; Miller and Sarat 1980–81 ). The media are largely culpable for stimulating such perceptions; by placing unwarranted reliance upon sensational and unrepresentative cases, the media present a largely perverted picture of the legal system and the courts' policy role in resolving private disputes (Haltom and McCann 2004 ).

Such perceptions have implications for the policy-making capacity of courts. One of the conditions for effective legal change is that courts enjoy support and acceptance from the public and other governmental officials. So, to the extent that the legal system is perceived as irrational or inefficient, this will impede the implementation of judicial rulings (Canon and Johnson 1999 , 33–43; Edwards 1980 ).

Such distortions aside, many citizens do regard litigation as a kind of right, and as a result they often turn to the courts as a forum for solving their interpersonal conflicts, even as judges are reluctant to consider them (Merry 1990 ). For the most part, though, the vast majority of individuals who suffer some form of wrong opt not to go to court. Many simply capitulate and accept their losses; far fewer actually complain. Among those who do complain, only a limited number take steps to consult a lawyer, and increasingly there are non-lawyers who work as representatives in some alternative form of dispute resolution (Kritzer 1998 ). For those who do seek legal counsel, relief is often secured without proceeding to actual litigation. When lawyers (or their functional equivalents) are unable to secure a settlement, it is only then that individuals actually turn to the courts (Miller and Sarat 1980–81 ). Thus, however large the number of individuals who go to court may be, it is inevitably only a small fraction of the number that could turn to the judicial system.

Knowing which litigants ultimately enter the process of litigation is important, because it is their substantive claims which, taken together, constitute the range of possible policies to which courts can address themselves. As passive policy-makers, judges can speak only to those concerns that are brought to the courthouse door.

If a representative sample of potential legal claims makes its way onto the courts' dockets, then judges will have as broad a set of issues as possible within which to articulate policy. If, on the other hand, there are systematic differences between those who could go to court and those who, in fact, do go to court, then those differences necessarily limit the available policy options.

Do actual litigants differ from potential litigants? In fact, scholars have known for some time that those who choose to go to court are quite different from those who do not. The universe of would-be litigants consists principally of two groups: large, aggregated interests, such as corporations and governments, that have greater resources, expertise, and access to legal representation, and smaller, more particularized interests, such as individuals and small businesses, that possess fewer resources and less sophistication and experience with the judicial system (Galanter 1974 ). Because the former are regular participants in the judicial process, they are commonly known as “repeat players.” The latter group—the “one-shotters”—are distinctive for their more limited use of litigation.

Although there is obviously variation across courts, the use of the judicial system is favored by larger, wealthier interests. Because of their resources and expertise, the repeat players litigate more often—and win more often—than the one-shotters. This finding seems to hold at different levels of the judicial system (Farole 1999 ; Songer, Sheehan, and Haire 1999 ) as well as across different countries. (Dotan 1999 ; Flemming 2005 ). To some extent, however, the bias in favor of the repeat player is mediated by the participation of interest groups in the judicial process. Because organized interests constitute one variety of repeat player, the sheer diversity of interests that use litigation ensures that voices from across the socioeconomic spectrum will enjoy the benefits of sophisticated and experienced representation in the courts (Caldeira and Wright 1990 ). Across a range of countries, organized interests provide these advantages (Brodie 2002 ; Epp 1998 ).

This differentiation among litigants is vital to an understanding of judicial policy-making, since lawyers and organized interests provide an important framing function for the disputes that judges consider. Courts serve as a venue for transforming various social, economic, and political problems into broader questions of public policy. This transformation of disputes from limited and bifurcated conflicts into general questions of public policy is a basic function of the courts (Mather and Yngvesson 1981 ). “Thus, when litigants and lawyers file legal claims and present arguments, they are defining problems and formulating policy alternatives” (Mather 1991 , 148).

Given that lawyers and organized interests have a major hand in defining the terms of legal contention, their decisions to go to court mean that legal policy is guided to a substantial degree by larger sets of interests, such as governments, big business, trade and professional associations, and the like. It is these types of litigants who choose to go to court, who lay the foundation for the policies they seek, and trade on their expertise and experience to help shift judicial policy in their direction.

4 Legal Foundations for Policy

One of the essential conditions for courts to succeed in effecting legal reform is that judges construct an intellectual infrastructure upon which to rest their policy goals, a kind of a network of supporting precedents that will support their ultimate aims. The idea that judge-made law be derived from established principles is a venerated tradition (Cardozo 1921 ; Levi 1948 ). If the policy innovations of judges are to succeed, they must be seen as legitimate. Establishing a legal basis in advance of those innovations serves to smooth the way to acceptance and reduce the likelihood of those policies being rejected.

Legal decision-making often relies heavily upon the tradition of the common law, where judges derive legal principles in the absence of promulgated law and apply those principles in later cases. This approach is a critical component for a great deal of judicial policy. To take one example, the supreme courts of the individual American states are under no obligation to follow one another's decisions, at least as far as issues of state law are concerned. Nevertheless, it is clear that appellate judges look to other state supreme courts, especially those that carry the highest reputations for professionalism, for precedents that can be employed to underwrite their own opinions (Caldeira 1985 ). Likewise, appellate courts at the national level take considerable pains to rely upon the decisions of the US Supreme Court (Songer, Segal, and Cameron 1994 ). Transnationally, courts likewise look outside their own borders for the guidance and experience of other tribunals.

There seems little doubt that judges use these established principles to help gain acceptance of their policy designs. For that reason, for example, the National Association for the Advancement of Colored People's legal fight 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 without first 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 in Dred 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 as Lochner vs. New York (1905), were considered an affront by many states that had enacted various commercial regulations to protect the health, safety, and welfare of their citizens (Kens 1998 ). Likewise, the modern conflict 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 in Roe vs. Wade (1973) (Hull and Hoffer 2001 ). 3

5 Systemic Support

As should be evident by now, courts require considerable cooperation and support from other actors as a condition for effective 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, offer rewards or impose punishments as a means of bringing about the courts' expected changes. This is a basic condition for effective judicial policy (Rosenberg 1991 ).

A strong test of this assumption would be to examine the extent of implementation 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 to fit this category is the elimination of racially segregated public schools in the United States. In 1954, the Supreme Court decided that separating schoolchildren on the basis of race violated the constitutional guarantee of equal protection of the laws. The decision in Brown vs. Board of Education ought to have produced major shifts in educational practices, especially in the South, where segregation of African-American children was so widely used.

This decision proved to be enormously unpopular among those most affected by it, producing vocal protests and, in the extreme, calls for the removal of Earl Warren, the chief justice under whom the decision was issued. Local officials in these areas were generally unsupportive and resisted, quite strenuously, any suggestion that their public schools should be integrated. Especially affected were the federal judges in the South—judges who lived and worked in close proximity to the longstanding practice of segregation—who were charged with overseeing the process of desegregation; those whose courts were located in the school districts they supervised were quite lax in bringing about implementation (Giles and Walker 1975 ).

The resistance from these officials was emblematic of a more general opposition. With little support—and no means by which to compel compliance—the Supreme Court faced widespread and sustained refusal to put its policy into effect. Segregation simply continued. “Statistics from the Southern states are truly amazing,” writes Gerald Rosenberg. “For ten years, 1954–64, virtually nothing happened. Ten years after Brown only 1.2 percent of black schoolchildren in the South attended school with whites” (Rosenberg 1991 , 52).

Beginning in 1964, however, compliance with the Court suddenly began to take place at a stunning rate. What had to be satisfied was one of the conditions for judicial efficacy; Congress, opting for the stick rather than the carrot, enacted the Civil Rights Act of 1964, which withdrew federal educational funds from school districts that discriminated on the basis of race. Faced with the loss of substantial moneys, public schools in the South quickly fell into line. Thus, the Court required the coordinated efforts of both Congress and the president to provide the support necessary to produce the policy changes that the Court demanded.

In the absence of the sword or the purse—that is, the absence of support from elsewhere within the political system—change will likely not occur if that change generates widely shared opposition. Research on reactions to the Supreme Court's early rulings outlawing devotional activities and Bible readings in public schools were widely disobeyed in the American South (Dolbeare and Hammond 1971 ; Way 1968 ). More recent analysis shows that a variety of outlawed religious practices still remain within Southern schools, often at surprisingly high levels (McGuire 2005 ).

Just as legislative bodies can oppose judicially-mandated change, so too can executive officials. Law enforcement in the United States has long sought to circumvent the Supreme Court's Miranda decision, which requires police to inform suspects who are in custody that they do not have to incriminate themselves. 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 effectiveness (White 2003 ). In the absence of other institutions to give force to the warnings requirement, police have been successful in muting the influence 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 effective. The case of Immigration and Naturalization Service vs. 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 implementation 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 indifference 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 ineffective.

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 different branches are entrusted. In the area of foreign affairs, for example, courts are typically loathe to question the decisions of elected officials, 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 ineffective policy (Ferejohn and Weingast 1992 ). High national courts in various countries, such as Germany and Argentina, are also forward-looking and 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 officials. One interesting case occurred in Malaysia in the mid-1980s, where, after a series of decisions that questioned various powers of elected officials, the government sought to remove a number of judges who were regarded as threats to its authority. Knowing that challenging the actions of elected representatives might result in removal from office, “the Malaysian judiciary is a more cautious institution” (Ginsburg 2003 , 80).

In the United States, as well, decisions that conflict with the preferences of lawmakers and outside interests will generate efforts 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 ). Alternatively, 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 effectiveness by sacrificing short-term gains. Stated differently, courts trade what they expect will be largely symbolic policies for a sustained level of efficacy.

6 Conclusions

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 influence. 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 representative 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 conflicts, 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.

All this makes judges highly dependent upon other institutions to put their decisions into effect. The various conditions for policy efficacy combine with the absence of enforcement power to require judges to rely in a special way upon other governmental actors to carry out their wishes. In order to cultivate their support, judges must take care to develop a solid legal foundation for any serious form of legal change, lest they lose the valuable political capital upon which they rely for their legitimacy.

There seems little doubt that these constraints genuinely operate on the courts. The limited effectiveness of legal reform that is frequently seen can be traced, in one way or another, to a failure to meet the problematic conditions for efficacy. Across different courts, different countries, and different policy domains, judges discover that they frequently face disregard for their judgments.

It is tempting to interpret such resistance as a sign of judicial impotence. One must bear in mind, however, that to a great degree interinstitutional resistance is endemic to any system of divided authority. Governments that adhere more strongly to notions of separation of powers, however, are more likely to generate friction between the branches. Courts may, perhaps, enjoy less effectiveness in their policy-making, but this is really a difference of degree rather than kind. After all, presidents, prime ministers, and other executives are unable to guarantee consistent support for their agendas. Likewise, legislative decision-makers routinely demonstrate greater attentiveness to the needs of advantaged interests whose resources have always helped to ensure greater access. The limitations of policy-making are scarcely unique to the judiciary.

In addition, the limitations that judges face as they make decisions should not be overstated. Despite their constraints, courts can still monitor the development of the law over a series of cases; they often have access to a good deal of policy information; and even policies that produce discord inside and outside of government can enjoy a high degree of respect. Indeed, recent evidence suggest that the role of courts around the world is actually expanding, with judges assuming an ever increasing scope of influence (see, e.g., Stone Sweet 2000 ; Tate and Vallinder 1995 ).

The future holds remarkable promise for our understanding of judges and judicial policy-making. As courts continue to expand their influence in individual countries, scholars will need to focus more attention on law and courts. Moreover, the increased importance of the expanding European Union will necessarily mean that transnational courts, such as the European Court of Justice and the European Court of Human Rights, will become increasingly involved in managing the domestic and foreign policies of member nations. At the same time, students of the courts will need to think with particular care about the best methods for studying judicial policy-making. For courts that have only recently begun to take on greater visibility, quantitatively-oriented scholars may be hampered by a relatively small number of observations. More traditional scholars will face difficulties in defining important concepts, such as judicial independence, that will make sense across a range of countries with different institutional arrangements. Where courts are relatively recent political players, it will also take some time before we can speak with confidence about the long-term impact of courts.

Whatever their level of effectiveness, courts will always bear careful scrutiny because they are both political and legal institutions. The substance of their policies—which so often resemble the issues taken up by elected officials—may shade this fact. Still, understanding the rules and norms that uniquely govern the judicial process is essential if one is to make sense of what courts can and cannot reasonably accomplish.

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Time also seems to be a necessary correlate in this process. Taken by itself, simply having a pretense of legal justification can scarcely be sufficient. 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 ).

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The Study of Language in the Judicial Process

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research papers on judicial process

  • Judith N. Levi 4  

Part of the book series: Law, Society and Policy ((LSPO,volume 5))

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One of the distinguishing features of contemporary research on language in the judicial process is the striking diversity of scholarly disciplines which have begun to make significant contributions to this domain of inquiry. In this volume alone, we find analyses by researchers trained in anthropology, English literature, law, linguistics, political science, psychology, sociology— and various combinations thereof. To be sure, the research reports have a fundamental theme in common: a shared focus on some aspect of language that has particular significance in the world of law. Nevertheless, we may observe among the researchers intriguing differences which lend an unusual richness and stimulating breadth to the field.

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Levi, J.N. (1990). The Study of Language in the Judicial Process. In: Levi, J.N., Walker, A.G. (eds) Language in the Judicial Process. Law, Society and Policy, vol 5. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-3719-3_1

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Standing Committee Report Summary

The Standing Committee on Personnel, Public Grievances, and Law and Justice (Chair: Mr Sushil Kumar Modi) submitted its report on “Judicial Process and their Reforms”, on August 07, 2023.  Key observations and recommendations of the Committee include:

Regional benches of the Supreme  Court:  The Committee observed that the Delhi-centric Supreme Court creates a significant hurdle for litigants coming from faraway areas of the country.  The Committee stated that the demand for establishing regional benches of the Supreme Court is based on the fundamental right of access to justice.  As per Article 130 of the Constitution, the Supreme Court will sit in Delhi or in such other place or places as the Chief Justice of India, with the approval of the President, may appoint.  The Committee recommended the establishment of regional benches of the Supreme Court.   It noted that Article 130 may be invoked to establish regional benches at four or five locations.  It suggested that the regional benches may decide appellate matters, while Constitutional matters may be dealt at Delhi.

Social diversity in the appointment of judges:  The Committee observed that the higher judiciary (Supreme Court and High Courts) suffers from a diversity deficit.  It noted that the representation of Scheduled Castes, Scheduled Tribes, Other Backward Classes, Women, and Minorities is far below the desired levels and does not reflect the social diversity of India.  For instance, since 2018, the percentage of High Court judges appointed from Scheduled Castes and Scheduled Tribes was 3% and 1.5%, respectively.  Further, it noted that there is no provision for reservation in the judicial appointments of the higher judiciary.  It suggested that the Supreme Court and High Court’s Collegiums should recommend an adequate number of women and candidates from marginalised communities including minorities.  It recommended that the Department of Justice collect data of the social status of judges presently serving in the Supreme Court and High Courts.

Retirement age for judges:  The Committee observed that the retirement age of judges needs to be increased to keep pace with advances in medical sciences and increased longevity.  Currently, the retirement age for Supreme Court and High Court judges is 65 and 62 years, respectively.  It recommended increasing the retirement age for Supreme Court and High Court judges and amending the relevant Articles of the Constitution.   Additionally, a system of appraisal may be devised by the Supreme Court Collegium to evaluate the performance and heath conditions of judges before extending their tenure.

Mandatory declaration of assets:  The Committee noted that as a practice all constitutional functionaries and government servants must file annual returns of their assets and liabilities.  However, judges are not required to disclose their assets and liabilities.  The Committee recommended that the central government bring out a law to mandate the higher judiciary judges to furnish their property returns annually to the appropriate authority.

Vacations in the Supreme Court and High Courts:  The Committee noted that the entire court going on vacation at once leads to the higher judiciary shutting down for a couple of months per year.  It observed that the demand to eliminate vacations in Courts stems from: (i) pendency of cases, and (ii) the inconvenience faced by litigants.   For example, the Committee noted that pendency in High Courts was over 60 lakh cases.  The Committee suggested that instead of all judges going on vacation simultaneously, individual judges should take their leave at different times throughout the year.

Annual reports of High Courts:  The Committee likened the publication of an annual report to an assessment of the institution’s performance over the past year.  Presently, the Supreme Court publishes its annual report, which also depicts work done by all High Courts.  The Committee observed that only some High Court are publishing their annual reports.  It recommended the Department of Justice to approach the Supreme Court to issue directions to all High Courts to prepare and publish their annual reports. 

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  • Amano T, Ramírez-Castañeda V, Berdejo-Espinola V, Borokini I, Chowdhury S, Golivets M, et al. (2023) The manifold costs of being a non-native English speaker in science. PLoS Biol 21(7): e3002184.  https://doi.org/10.1371/journal.pbio.3002184   
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