President Lyndon B. Johnson, after signing the Civil Rights Act of 1964, shakes hands with Dr. Martin Luther King, Jr. (© AP Images)

(The following article is taken from the U.S. Department of State publication, Outline of the U.S. Legal System.)

 

After a court's decision is reached, a variety of individuals – other judges, public officials, even private citizens – may be called upon to implement the decision. This chapter looks at the various actors involved in the implementation process, their reactions to judicial policies, and the methods by which they may respond to a court's decision.

 

Depending upon the nature of the court's ruling, the judicial policy may have a very narrow or a very broad impact. A suit for damages incurred in an automobile accident would directly affect only the persons involved and perhaps their immediate families. But the famous Gideon v. Wainwright (1963) decision has directly affected millions of people in one way or another. In Gideon the Supreme Court held that states must provide an attorney for indigent defendants in felony trials. Scores of people – defendants, judges, lawyers, taxpayers – have felt the effects of that judicial policy.

 

THE IMPACT OF HIGHER-COURT DECISIONS ON LOWER COURTS

Appellate courts, notably the U.S. Supreme Court, often are viewed as the most likely courts to be involved in policy making, while the trial courts are generally seen as norm enforcers. However, lower-court judges have a great deal of independence from the appellate courts and may be viewed, according to one study, as "independent actors...who will not follow the lead of higher courts unless conditions are favorable for their doing so."

 

Lower-Court Discretion

Why do the lower-court judges have so much discretion when it comes to implementing a higher court's policy? In part, the answer may be found in the structure of the U.S. judicial system. The judiciary has always been characterized by independence, decentralization, and individualism. Federal judges, for example, are protected by life tenure and traditionally have been able to run their courts as they see fit. Disciplinary measures are not at all common, and federal judges have historically had little fear of impeachment. To retain their positions, the state trial court judges generally have only to keep the electorate satisfied.

 

The discretion exercised by a lower-court judge may also be a product of the higher court's decision itself. For example, following the famous school desegregation case, Brown v. Board of Education of Topeka (1954), the Supreme Court told federal district judges, who had the task of enforcing the ruling, that the public schools were to make a prompt and reasonable start and then proceed with all deliberate speed to bring about desegregation. What constitutes a prompt and reasonable start? How rapidly must a school district proceed in order to be moving with all deliberate speed? The Supreme Court did not provide specific answers to these questions.

 

Although not all High Court decisions are so open to interpretation, a good number of them are. A court's decision may be unclear for several reasons. Sometimes the issue or subject matter may be so complex that it is difficult to fashion a clear policy. In obscenity cases, for instance, the Supreme Court has had little difficulty in deciding that pornographic material is not entitled to protection as free speech under the First Amendment to the Constitution. Defining obscenity has proven to be another matter, however. Phrases such as "prurient interest," "patently offensive," "contemporary community standards," and "without redeeming social value" have become commonplace in obscenity opinions, but these terms leave a good deal of room for subjective interpretation.

 

Policies established by collegial courts are often ambiguous because the majority opinion is written to accommodate several judges. The majority opinion may also be accompanied by several concurring opinions. When this happens, lower court judges are left without a clear-cut precedent to follow. For example, in Furman v. Georgia (1972), the Supreme Court struck down the death penalty in several states, but for a variety of reasons. Some justices opposed the death penalty per se, on the ground that it constituted cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. Others voted to strike down the state laws because they were applied in a discriminatory manner. The uncertainty created by the 1972 decision affected not only lower-court judges but also state legislatures. The states passed a rash of widely divergent death penalty statutes and caused a considerable amount of new litigation.

 

A lower-court judge's discretion in the implementation process may also be affected by the manner in which a higher court's policy is communicated. Certainly the court from which a case has been appealed will be informed of the decision. However, systematic, formal efforts are not made to inform other courts of the decision or to see that lower-court judges have access to a copy of the opinion. The decisions that contain the new judicial policy are made available to the public in printed form or on the Internet, and judges are expected to read them if they have the time and inclination.

 

Opinions of the Supreme Court, lower federal courts, and state appellate courts are available in a large number of courthouse, law school, and university libraries. They are also increasingly available on the Internet. This widespread availability does not guarantee that they will be read and clearly understood, however. Many lower-level state judges, such as justices of the peace and juvenile court judges, are nonlawyers who have little interest or skill in reading complex judicial decisions. Finally, even those judges who have an interest in higher-court decisions and the ability to understand them do not have adequate time to keep abreast of all the new opinions.

 

Given these problems, how do judges become aware of upper-court decisions? One way is to hear of them through lawyers presenting cases in the lower courts. It is generally assumed that the opposing attorneys will present relevant precedents in their arguments before the judge. Those judges who have law clerks may also rely upon them to search out recent decisions from higher courts.

 

Thus some higher-court policies are not quickly and strictly enforced simply because lower-court judges are not aware of them. Even those of which they are aware may not be as clear as a lower-court judge might like. Either reason contributes to the discretion exercised by lower court judges placed in the position of having to implement judicial policies.

 

Interpretation by Lower Courts

One study noted that "important policy announcements almost always require interpretation by someone other than the policy maker." This is certainly true in the case of judicial policies established by appellate courts. The first exercise of a lower-court judge's discretion may be to interpret what the higher court's decision means.

 

The manner in which a lower-court judge interprets a policy established by a higher court depends upon a number of factors. Many policies are not clearly stated. Thus reasonable people may disagree over the proper interpretation. Even policy pronouncements that do not suffer from ambiguity, however, are sometimes interpreted differently by different judges.

 

A judge's own personal policy preferences will also have an effect upon the interpretation he or she gives to a higher-court policy. Judges come to the courts with their own unique background characteristics. Some are Republican, others are Democrat; one judge may be more lenient, another strict. They come from different regions of the country. Some have been prosecutors; others have been primarily defense lawyers or corporate lawyers. In short, their backgrounds may influence their own particular policy preferences. Thus the lower-court judges may read their own ideas into a higher-court policy. The result is that a policy may be enthusiastically embraced by some judges yet totally rejected by others.

 

Strategies Employed by Lower Courts

Judges who favor and accept a higher court's policy will naturally try to enforce it and perhaps even expand upon it. Some judges even have risked social ostracism and various kinds of harassment in order to implement policies they believed in but that were not popular in their communities.

 

Judges who do not like a higher court's policy decision may implement it sparingly or only under duress. A judge who basically disagrees with a policy established by a higher court can employ a number of strategies. One rarely used strategy is defiance, whereby a judge simply does not apply the higher court's policy in a case before a lower court.

 

Such outright defiance is highly unusual. Other strategies are not so extreme. One is simply to avoid having to apply the policy. A case may be disposed of on technical or procedural grounds so that the judge does not have to rule on the actual merits of the case. It may be determined, for example, that the plaintiff does not have standing to sue or that the case has become moot because the issue was resolved before the trial commenced. Lower-court judges sometimes avoid accepting a policy by declaring a portion of the higher-court decision to be "dicta" (Latin, meaning an authoritative declaration). Dicta refers to the part of the opinion that does not contribute to the central logic of the decision. It may be useful as guidance but is not seen as binding. What constitutes dicta is open to varying interpretations.

 

Another strategy used by judges who are in basic disagreement with a judicial policy is to apply it as narrowly as possible. One method is for the lower-court judge to rule that a precedent is not controlling because factual differences exist between the higher-court case and the case before the lower courts. That is, because the two cases may be distinguished, the precedent does not have to be followed.

 

Influences on Lower-Court Judges

At times the lower courts must decide cases for which no precise standards have been provided by the higher courts. Whenever this occurs, lower-court judges must turn elsewhere for guidance in deciding a case before them. One study notes that lower-court judges in such a position "may take their cues on how to decide a particular case from a wide variety of factors including their party affiliation, their ideology, or their regional norms."

 

CONGRESSIONAL INFLUENCES ON THE IMPLEMENTATION PROCESS

Once a federal judicial decision is made, Congress can offer a variety of responses: It may aid or hinder the implementation of a decision. In addition, it can alter a court's interpretation of the law. Finally, Congress can mount an attack on an individual judge.

 

In the course of deciding cases, the courts are often called upon to interpret federal statutes. On occasion the judicial interpretation may differ from what a majority in Congress intended. When that situation occurs, Congress can change the statute in new legislation that in effect overrules the court's initial interpretation. However, the vast majority of the federal judiciary's statutory decisions are not changed by Congress.

 

Besides ruling on statutes, the federal courts interpret the Constitution. Congress has two methods to reverse or alter the effects of a constitutional interpretation it does not like. First, Congress can respond with another statute designed to avoid the constitutional problems. Second, a constitutional decision can be overturned directly by an amendment to the U.S. Constitution. Although many such amendments have been introduced over the years, it is not easy to obtain the necessary two-thirds vote in each house of Congress to propose the amendment and then achieve ratification by three-fourths of the states. Only four Supreme Court decisions in the history of the Court have been overturned by constitutional amendments.

 

Congressional attacks on the federal courts in general and on certain judges in particular are another method of responding to judicial decisions. These attacks may take the form of verbal denouncements by a member of Congress, threats of impeachment of sitting judges, or more thorough investigations of the judicial philosophies of potential nominees to the federal bench.

 

Congress and the federal courts are not natural adversaries, however. Retaliations against the federal judiciary are fairly rare, and often the two branches work in harmony toward similar policy goals. For example, Congress played a key role in implementing the Supreme Court's school desegregation policy by enacting the Civil Rights Act of 1964, which empowered the Justice Department to initiate suits against school districts that failed to comply with the Brown v. Board of Education decision. Title VI of the Act also provided a potent weapon in the desegregation struggle by threatening the denial of federal funds to schools guilty of segregation. In 1965 Congress further solidified its support for a policy of desegregated public schools by passing the Elementary and Secondary Education Act. This act gave the federal government a much larger role in financing public education and thus made the threat to cut off federal funds a serious problem for many segregated school districts. Such support from Congress was significant because the likelihood of compliance with a policy is increased when there is unity between branches of government.

 

EXECUTIVE BRANCH INFLUENCES ON THE IMPLEMENTATION PROCESS

At times the president may be called upon directly to implement a judicial decision. An example is United States v. Nixon (1974). A Senate committee investigation into the cover-up of a break-in at the Democratic Party headquarters in the Watergate Hotel in Washington, D.C., led directly to high government officials working close to the president. It was also revealed during the investigation that President Richard Nixon had installed an automatic taping system in the Oval Office. Leon Jaworski, who had been appointed special prosecutor to investigate the Watergate affair, subpoenaed certain tapes that he felt might provide evidence needed in his prosecutions of high-ranking officials. Nixon refused to turn over the tapes on grounds of executive privilege and the need for confidentiality in discussions leading to presidential decisions. The Supreme Court's decision instructed the president to surrender the subpoenaed tapes to Judge John J. Sirica, who was handling the trials of the government officials. Nixon did comply with the High Court's directive and thus a decision was implemented that quickly led to his downfall. Within two weeks he resigned from the presidency, in August 1974.

 

Even when not directly involved in the enforcement of a judicial policy, the president may be able to influence its impact. Because of the status and visibility of the position, a president, simply by words and actions, may encourage support for, or resistance to, a new judicial policy.

 

A president can propose legislation that directly affects the courts. President Franklin D. Roosevelt, for instance, unsuccessfully urged Congress to increase the size of the Supreme Court so he could "pack" it with justices who supported his administration's legislative agenda.

 

The appointment power also gives the president an opportunity to influence federal judicial policies, as the president appoints all federal judges, with the advice and consent of the Senate.

 

A president can influence judicial policy making through the activities of the Justice Department, a part of the executive branch. The attorney general and staff subordinates can emphasize specific issues according to the overall policy goals of the president. The other side of the coin, however, is that the Justice Department may, at its discretion, deemphasize specific policies by not pursuing them vigorously in the courts.

 

Another official who is in a position to influence judicial policy making is the solicitor general. Historically, this official has been seen as having dual responsibility to both the judicial and executive branches. Because of the solicitor general's close relationship with the Supreme Court, this official is sometimes referred to as the "tenth justice." The solicitor general is often seen as a counselor who advises the Court about the meaning of federal statutes and the Constitution. The solicitor general also determines which of the cases involving the federal government as a party will be appealed to the Supreme Court. Furthermore, he or she may file an amicus curiae brief urging the Court to grant or deny another litigant's certiorari petition or supporting or opposing a particular policy being urged upon the High Court.

 

Many judicial decisions are actually implemented by the various departments, agencies, bureaus, and commissions of the executive branch. For example, the Supreme Court decision in Frontiero v. Richardson (1973) called upon the U.S. Air Force to play the major implementation role. The Frontiero case questioned congressional statutes that provided benefits for married male members of the Air Force but did not provide similar benefits for married female members. Lieutenant Sharron Frontiero challenged the policy on the ground that it constituted sexual discrimination. A federal district court in Alabama issued a decision upholding the Air Force policy. Lieutenant Frontiero appealed to the Supreme Court, which overturned the lower court decision and required the Air Force to implement a new policy.

 

Supporters and opponents of the Supreme Court's Roe v. Wade abortion ruling exercise their right to assemble and protest. (© AP Images)

OTHER IMPLEMENTERS

The implementation of judicial policies is often performed by state as well as federal officials. Many of the Supreme Court's criminal due process decisions, such as Gideon v. Wainwright and Miranda v. Arizona (1966), have been enforced by state court judges and other state officials. State and local police officers, for instance, have played a major role in implementing the Miranda requirement that criminal suspects must be advised of their rights. The Gideon ruling that an attorney must be provided at state expense for indigent defendants in felony trials has been implemented by public defenders, local bar associations, and individual court-appointed lawyers.

 

State legislators and executives are also frequently drawn into the implementation process. A judge who determines that a wrong has been committed may choose from a variety of options to remedy the wrong. Among the more common options are process remedies, performance standards, and specified remedial actions. Process remedies provide for such things as advisory committees, citizen participation, educational programs, evaluation committees, dispute resolution procedures, and special masters to address a problem and come up with a solution. The remedies do not specify a particular form of action. Performance standards call for specific remedies – for example, a certain number of housing units or schools or a certain level of staffing in a prison or mental health facility. The specific means of attaining these goals are left to the discretion of the officials named in the suit. Examples of specified remedial actions are school busing, altered school attendance zones, and changes in the size and condition of prison cells or hospital rooms. This type of remedy provides the defendant with no flexibility concerning the specific remedy or the means of attaining it.

 

Implementation of these remedial decrees often devolves, at least partially, to the state legislatures. An order calling for a certain number of prison cells or a certain number of guards in the prison system might require new state expenditures, which the legislature would have to fund. Similarly, an order to construct more modern mental health facilities or provide more modern equipment would mean an increase in state expenditures. Governors would also be involved in carrying out these types of remedial decrees because they typically are heavily involved in state budgeting procedures. Also, they may sign or veto laws.

 

Sometimes judges appoint certain individuals to assist in carrying out the remedial decree. Special masters are usually given some decision-making authority. Court-appointed monitors are also used in some situations, but they do not relieve the judge of decision-making responsibilities. Instead, the monitor is an information gatherer who reports on the defendant's progress in complying with the remedial decree. When orders are not implemented or when barriers of one kind or another block progress in providing a remedy, a judge may name someone as a receiver and empower him or her to disregard normal organizational barriers to get the job done.

 

One group of individuals has been deeply involved in implementing judicial policies: the thousands of men and women who constitute school boards throughout the country. Two major policy areas stand out as having embroiled school board members in considerable controversy as they faced the task of trying to carry out Supreme Court policy.

 

First, when the High Court ruled in 1954 that segregation has no place in the public schools, school boards and school superintendents, along with federal district judges, bore the brunt of implementing that decision. Their role in this process has affected the lives of millions of schoolchildren, parents, and taxpayers all over America.

 

The second area that has involved school boards is the Supreme Court's policies on religion in the public schools. In Engel v. Vitale (1962), the Court held unconstitutional a New York requirement that a state-written prayer be recited daily in the public schools. Some school districts responded to the decision by requiring instead the recitation of a Bible verse or the Lord's Prayer. Their reasoning was that since the state did not write the Lord's Prayer or the Bible, they were not violating the Court's policy. A year later, the Supreme Court struck down these new practices, pointing out that the constitutional violation lay in endorsing the religious activity and its determination did not depend on whether the state had written the prayer.

 

THE IMPACT OF JUDICIAL POLICIES

The ultimate importance of the Supreme Court's decisions depends primarily on their impact on American society as a whole. A few policies that have had significant effects are in the areas of racial equality, criminal due process, and abortion.

 

Racial Equality

Many point to the Supreme Court's decision in Brown v. Board of Education as the impetus for the drive for racial equality in the United States. However, Congress and the executive branch were also involved in the process of ensuring implementation of the decision's desegregation policy. Still, the courts initiated the pursuit for a national policy of racial equality with the Brown ruling.

 

In the beginning, the court decisions were often vague, leading to evasion of the new policy. The Supreme Court justices and many lower federal judges were persistent, however, and kept the policy of racial equality on the national political agenda. Their persistence paid off with passage of the 1964 Civil Rights Act, 10 years after the Brown decision. That act, which had the strong support of Presidents John F. Kennedy (1961-63) and Lyndon B. Johnson (1963-69), squarely placed Congress and the president on record as being supportive of racial equality in America.

 

One other aspect of the federal judiciary's importance in the policy-making process is illustrated by the Brown decision and the cases that followed it. Although the courts stood virtually alone in the quest for racial equality for several years, their decisions did not go unnoticed. Charles A. Johnson and Bradley C. Canon argue in Judicial Policies: Implementation and Impact that the Brown decision "was a highly visible Court decision, a judicial attempt to generate one of the greatest social reforms in American history. And certainly in the years that followed, African Americans and their allies brought considerable pressures on other governmental bodies to desegregate the schools. Indeed, the pressures soon went far beyond schools to demand integration of all aspects of American life."

 

Criminal Due Process

Judicial policy making in the area of criminal due process is most closely associated with Earl Warren's tenure as U.S. chief justice (1953-69). Speaking of this era, Archibald Cox, a former solicitor general, said, "Never has there been such a thorough-going reform of criminal procedure within so short a time." The Warren Court decisions were aimed primarily at changing the procedures followed by the states in dealing with criminal defendants. By the time Warren left the Supreme Court, new policies had been established to deal with a wide range of activities; among the more far-reaching were Mapp v. Ohio (1961), Gideon v. Wainwright, and Miranda v. Arizona. The Mapp decision extended the exclusionary rule, which had applied to the national government for a number of years, to the states. This rule required state courts to exclude from trial evidence that had been illegally seized by the police. Although some police departments, especially in major urban areas, have tried to establish specific guidelines for their officers to follow in obtaining evidence, such efforts have not been universal. Because of variations in police practices and differing lower-court interpretations of what constitutes a valid search and seizure, implementation of Mapp has not been consistent throughout the United States.

 

Perhaps even more important in reducing the expected impact of Mapp was the lack of solid support for the exclusionary rule among the Supreme Court justices. The decision was not a unanimous one to begin with, and over the years some justices have been openly critical of the exclusionary rule. Furthermore, subsequent Supreme Court decisions have broadened the scope of legal searches, thus limiting the applicability of the rule.

 

The Gideon v. Wainwright decision held that indigent defendants must be provided attorneys when they go to trial in a felony case in the state courts. Many states routinely provided attorneys in such trials even before the Court's decision. The other states began to comply in a variety of ways. Public defender programs were established in many regions. In other areas, local bar associations cooperated with judges to implement some method of complying with the Supreme Court's new policy.

 

The impact of the Gideon decision is clearer and more consistent than that of Mapp. One reason, no doubt, is the fact that many states had already implemented the policy called for by Gideon. It was simply more widely accepted than the policy established by Mapp. The policy announced in Gideon was also more sharply defined than the one in Mapp. Although the Court did not specify whether a public defender or a court-appointed lawyer must be provided, it is still clear that the indigent defendant must have the help of an attorney. Also, the Supreme Court under the next chief justice, Warren Burger (1969-86), did not retreat from the Warren Court's policy of providing an attorney for indigent defendants as it did in the search and seizure area addressed by Mapp. All these factors add up to a more recognizable impact for the policy announced in Gideon.

 

In Miranda v. Arizona the Supreme Court went a step further and ruled that police officers must advise suspects taken into custody of their constitutional rights, one of which is to have an attorney present during questioning. Suspects must also be advised that they have a right to remain silent and that any statement they make may be used in court; that if they cannot afford an attorney, one will be provided at state expense; and that they have the right to stop answering questions at any time. These requirements are so clearly stated that police departments have actually copied them down on cards for officers to carry in their shirt pockets. Then, when suspects are taken into custody, the police officers simply remove the card and read the suspects their rights.

 

In terms of whether police officers read the Miranda rights to persons they arrest, there has been a high level of compliance with the Supreme Court policy. Some researchers, however, have questioned the impact of Miranda because of the method by which suspects may be advised of their rights. It is one thing to read to a person from a card; it is another to explain what is meant by the High Court's requirements and then try to make the suspect understand them. Looked at in this manner, the impact of the policy announced in Miranda is not quite as clear.

 

The Burger Court did not show an inclination to lend its solid support to the Warren Court's Miranda policy. Although Miranda has not been overruled, its impact has been limited somewhat. In Harris v. New York (1971), for example, the Burger Court ruled that statements made by an individual who had not been given the Miranda warning could be used to challenge the credibility of his testimony at trial. Then, the Court, under the leadership of Chief Justice William Rehnquist (1986- ), ruled in Davis v. United States (1994) that police are not required to stop questioning a suspect who makes an ambiguous request to have an attorney present.

 

Congress reacted to Miranda, two years after the decision, by enacting a statute that in essence made the admissibility of a suspect's statements turn solely on whether they were made voluntarily. The statute received little attention until 1999 when the Fourth Circuit Court of Appeals, in a case involving an alleged bank robber who moved to suppress a statement he made to the FBI on grounds that he had not received "Miranda warnings" before being interrogated, held that the statute was satisfied because his statement was voluntary. The court of appeals decision raised the question whether the congressional statute or the High Court's Miranda decision should be followed. On June 26, 2000, the U.S. Supreme Court held that Miranda, being a constitutional decision of the Court, could not in effect be overruled by an act of Congress. In other words, the Miranda decision still governs the admissibility of statements made during custodial interrogation in state and federal courts.

 

In sum, the impact of the Supreme Court's criminal justice policies has been mixed, for several reasons. In some instances ambiguity is a problem. In other cases less than solid support for the policy may be evident among justices or support erodes when one Court replaces another. All these variables translate into greater discretion for the implementers.

 

Abortion

In Roe v. Wade (1973) the Supreme Court ruled that a woman has an absolute right to an abortion during the first trimester of pregnancy; that a state may regulate the abortion procedure during the second trimester in order to protect the mother's health; and that, during the third trimester, the state may regulate or even prohibit abortions, except where the life or health of the mother is endangered.

 

The reaction to this decision was immediate, and primarily negative. It came in the form of letters to individual justices, public speeches, the introduction of resolutions in Congress, and the advocacy of "right to life" amendments in Congress. Given the controversial nature of the Court's decision, hospitals did not wholeheartedly offer to support the decision by changing their abortion policies.

 

Reaction to the Court's abortion policy has not only continued but also has moved into new areas. Recent presidential elections have seen the two major party platforms and candidates take opposing stands on the abortion issue. Democratic platforms and nominees have generally expressed support for Roe v. Wade, whereas the Republican platforms and contenders have noted opposition to the Supreme Court's decision.

 

Congress has also been a hotbed of activity in response to the Supreme Court's abortion decision. Unable to secure passage of a constitutional amendment to overturn Roe v. Wade, antiabortion – also known as pro-life – forces successfully lobbied for amendments to appropriations bills preventing the expenditure of federal funds for elective abortions. In 1980 the Supreme Court, in a five-to-four vote, upheld the constitutionality of such a prohibition.

 

Most of the legislation in the aftermath of the Roe decision has been at the state level. One study reports that within two years of the decision 32 states had passed 62 laws relating to abortion, most aimed at limiting access to abortions, regulating abortion procedures, or prohibiting abortions under certain conditions.

 

Interest group activity increased dramatically after the Roe decision. Groups opposing the decision often organized public demonstrations against the decision and later began to picket clinics. Interest groups that support the Roe v. Wade decision have been more likely to focus their efforts on the courts.

 

While battles over the abortion issue were being fought in the courts, political campaigns, and legislative arenas, others preferred a more direct approach, demonstrating at and blockading abortion centers. The Supreme Court has ruled, however, that reasonable time, place, and manner restrictions may be placed on such demonstrations. That position was reaffirmed on June 28, 2000, when the Court upheld a Colorado statute making it unlawful for a person to knowingly approach another person without that person's consent to hand out a leaflet, display a sign, or orally protest within 100 feet of a health care facility.

 

Conclusions

Some judicial policies have a greater impact on society than others. The judiciary plays a greater role in developing the nation's policies than the constitutional framers envisioned. However, "American courts are not all-powerful institutions," writes Gerald N. Rosenberg in Hollow Hope: Can Courts Bring About Social Change? "They were designed with severe limitations and placed in a political system of divided powers. To ask them to produce significant social reforms is to forget their history and ignore their constraints."

 

Within this complex framework of competing political and social demands and expectations is a policy-making role for the courts. Because the other two branches of government are sometimes not receptive to the demands of certain segments of society, the only alternative for those individuals or groups is to turn to the courts. Civil rights organizations, for example, made no real headway until they found the Supreme Court to be a supportive forum for their school desegregation efforts.

 

As civil rights groups attained some success in the federal courts, others were encouraged to employ litigation as a strategy. For example, women's rights supporters followed a pattern established by minority groups when they began taking their grievances to the courts. What began as a more narrow pursuit for racial equality was thus broadened to a quest for equality for other disadvantaged groups in society.

 

Clearly, then, the courts can announce policy decisions that attract national attention and perhaps stress the fact that other policy makers have failed to act. In this way the judiciary may invite the other branches to exercise their policy-making powers. Follow-up decisions indicate the judiciary's determination to pursue a particular policy and help keep alive the invitation for other policy makers to join in the endeavor.

 

All things considered, the courts seem best equipped to develop and implement narrow policies that are less controversial in nature. The policy established in the Gideon case provides a good example. The decision that indigent defendants in state criminal trials must be provided with an attorney did not meet any strong outcries of protest. Furthermore, it was a policy that primarily required the support of judges and lawyers; action by Congress and the president was not really necessary. A policy of equality for all segments of society, on the other hand, is so broad and controversy-laden that it must move beyond the judiciary. As it does so, the courts become simply one part, albeit an important part, of the policy-making process.

 

[Chapters 1 through 8 are adapted with permission from the book Judicial Process in America, 5th edition, by Robert A. Carp and Ronald Stidham, published by Congressional Quarterly, Inc. Copyright © 2001 Congressional Quarterly Inc. All rights reserved.]