Judicial Policymaking

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Judicial policymaking and related terms—judicial activism, judicial creativity, and judicial legislation—emphasize that judges are not mere legal automatons who simply "discover" or "find" definite, preexisting principles and rules, as the declaratory or oracular conception of the judicial function insisted, but are often their makers. As Justice oliver wendell holmes remarked, they often exercise "the sovereign prerogative of choice," and they "can and do legislate." Indeed, that is why the Supreme Court has often been viewed as "a continuing constitutional convention."

Policymaking is deciding what is to be done by choosing among possible actions, methods, or principles for determining and guiding present and future actions or decisions. Courts, especially high appellate courts such as the supreme court, often make such choices, establishing new rules and principles, and thus are properly called policy-makers. That was emphasized by charles evans hughes's famous rhetorical exaggeration, "The Constitution is what the judges say it is," and by his remark that a federal statute finally means what the Court, as ultimate interpreter of congressional legislation, says it means.

The persistent "declaratory" conception of the judicial role, a view critics derided as mechanical jurisprudence, and simplistic notions of the separation of powers principle long obscured the reality of judicial policymaking. Today it is widely recognized that, as C. Herman Pritchett has explained, "judges are inevitably participants in the process of public policy formulation; that they do in fact "make law'; that in making law they are necessarily guided in part by their personal conceptions of justice and public policy; that written law requires interpretation which involves the making of choices; that the rule of stare decisis is vulnerable because precedents are typically available to support both sides in a controversy."

As a system of social control, law must function largely through general propositions rather than through specific directives to particular persons. And that is especially true of the Constitution. The Framers did not minutely specify the national government's powers or the means for executing them: as Chief Justice john marshall said, the Constitution "is one of enumeration, rather than of definition." Many of its most important provisions are indeterminate and open-textured. They are not self-interpreting, and thus judges must read specific meanings into them and determine their applicability to particular situations, many of which their authors could not have anticipated.

Among the Constitution's many ambiguous, undefined, pregnant provisions are those concerning cruel and unusual punishment; double jeopardy; due process of law; equal protection of the laws; establishment of religion; excessive bail and fines; ex post facto laws; freedom of speech, press, assembly, and religion; life, liberty, and property; the power to regulate commerce among the several states; and unreasonable searches and seizures. Also undefined by the Constitution are such fundamental conceptions as judicial review, the rule of law, and the separation of powers. Small wonder, then, that Justice robert h. jackson plaintively remarked that the Court must deal with materials nearly as enigmatic as the dreams of Pharaoh which Joseph had to interpret; or that Chief Justice earl warren emphasized that the Constitution's words often have "an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government."

Because the Constitution embodies in its ambiguous provisions both common and conflicting community ideals, the Supreme Court serves, as Edward H. Levi has said, as "a forum for the discussion of policy in the gap of ambiguity," which allows the infusion into constitutional law of new meanings and new ideas as situations and people's ideas change. That is the process which Justice felix frankfurter described as "the evolution of social policy by way of judicial application of the Delphic provisions of the Constitution." Brief accounts of some notable Supreme Court decisions reveal their policymaking features.

Although the Constitution nowhere explicitly grants Congress the power to incorporate a national bank, the Supreme Court in mcculloch v. maryland (1819) held that power to be implied by the Constitution's necessary and proper clause. That clause empowers Congress, in executing its various enumerated powers, to make all laws for that purpose which are "necessary and proper." But those ambiguous words are not further defined by the Constitution.

In making its McCulloch decision, the Court chose between two historic, diametrically opposed interpretations. The narrow, states ' rights, strict construction, Jeffersonian interpretation of the clause was restrictive and limited Congress to legislation that was "absolutely necessary," that is, literally indispensable. The opposing interpretation, which the Court adopted, was the broad, nationalist, loose constructionist, Hamiltonian view that "necessary and proper" were equivalent to "convenient and useful" and thus were facilitative, not restrictive. The bank, declared the Court, was a convenient and useful means to legitimate ends and thus was constitutional.

Viewed broadly as the great implied powers case and the "fountainhead of national powers," McCulloch laid down the Hamiltonian doctrine as the authoritative rule of construction to be followed in interpreting Congress's various undefined powers. Subsequently, on that foundation, Congress erected vast superstructures of regulatory and social service legislation. The profound policy considerations underlying the Court's choices are highlighted by the contrast between Jefferson's warning that the dangerous Hamiltonian doctrine would give Congress a boundless field of undefined powers, and Chief Justice Marshall's emphasis upon the "pernicious, baneful," narrow construction which would make the national government's operations "difficult, hazardous, and expensive" and would reduce the Constitution to "a splendid bauble."

The right to privacy was recognized by the Supreme Court in griswold v. connecticut (1965). There, and in other cases, the Court variously discerned the "roots" of that right, which is not explicitly mentioned in the Constitution, in the first, fourth, Fifth, ninth, and fourteenth amendments and in "the penumbras of the bill of rights." Later, in roe v. wade (1973), the Court included a woman's right to an abortion in the right of privacy, and, in the detailed manner characteristic of legislation, divided the pregnancy term into three periods and prescribed specific rules governing each. Balancing a woman's interests against a state's interests during these three periods, the Court held that any decision regarding abortion during the first was solely at the discretion of the woman and her physician. But it further ruled that a state's interests in protecting maternal health, maintaining medical standards, and safeguarding potential human life—interests growing in substantiality as the pregnancy term extended—justified greater state regulation later. Thus, state regulations relating to maternal health and medical standards would be permissible in the second period, and more stringent state regulations, even extending to prohibition of abortion, would be permissible in the third period in the interest of safeguarding potential life.

The protests by dissenting Justices in the Griswold and Roe cases emphasized the judicial policymaking which those decisions revealed. The Griswold dissenters objected that no right of privacy could be found "in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court." And dissenters in Roe complained that the Court's decision was "an improvident and extravagant exercise of the power of judicial review "; that the Court had fashioned "a new constitutional right for pregnant mothers"; and that the Court's "conscious weighing of competing factors" and its division of the pregnancy term into distinct periods were "far more appropriate to a legislative judgement than to a judicial one."

The Supreme Court's " reapportionment revolution" remedied long-standing discriminations against urban and metropolitan areas in favor of rural areas, by requiring states to reapportion their legislatures in conformity with the rule that legislative districts must be as nearly of equal population as is practicable.

That rule is not found in any constitutional provision specifically addressed to legislative apportionment, for none exists. It is a Court-created rule which clearly demonstrates the leeway for policymaking that open-ended constitutional provisions give the Court. Equal population, the Court said in wesberry v. sanders (1964), is required for congressional districts by "the command" of Article I, section 2, of the Constitution, that representatives "be chosen by the People" of the states; and is required for state legislative districts, the Court held in reynolds v. sims (1964), by "the clear and strong command" of the fourteenth amendment's equal protection clause, forbidding states to deny to any persons "the equal protection of the laws."

Courtesy may ascribe the Court's rule to constitutional interpretation; but candor ascribes it to judicial policymaking. The dissenting Justices' objections in these cases made that clear. They included complaints that the Court had frozen one political theory of representation into the Constitution; had failed to exercise judicial self-restraint; had decided questions appropriate only for legislative judgment; had violated the separation of powers doctrine; and had excluded numerous important considerations other than population.

Supreme Court overruling decisions, in which it rejects its earlier positions for those later thought more fitting, often strikingly exemplify judicial policymaking. In mapp v. ohio (1961) the Court imposed upon state courts its judicially created exclusionary rule making illegally obtained evidence inadmissible in court. It overruled wolf v. colorado (1949) which, in deference to state policies, had held an exclusionary rule not essential for due process of law.

Some overruling decisions illustrate "the victory of dissent," when earlier dissenting Justices' views in time became the law. Thus in gideon v. wainwright (1963) the Court applied its rule that indigent defendants in all state felony trials must have court-appointed counsel. Overruling betts v. brady (1942), the Court adopted Justice Black's dissenting position from it, thus repudiating its Betts pronouncement that such appointment was "not a fundamental right, essential to a fair trial."

According to the Court in barron v. baltimore (1833), the Bill of Rights—the first ten amendments—limits the national government but not the states. But the Court, by its incorporation doctrine, has read nearly all the specific guarantees of the Bill of Rights into the due process clause of the Fourteenth Amendment which provides simply that no state shall "deprive any person of life, liberty, or property, without due process of law." The incorporation has been called selective because the Court, proceeding case by case, has incorporated those guarantees which it considers "fundamental" and "of the very essence of a scheme of ordered liberty."

Selective incorporation has involved two kinds of Supreme Court policymaking: adopting the fundamental rights standard for guiding incorporation, and making the separate decisions incorporating particular Bill of Rights guarantees. Thus the Court, applying its open-textured rule, has given specific meaning to "the vague contours" of the due process clause. And it has become "a perpetual censor" over state actions, invalidating those that violate fundamental rights and liberties.

Clearly the Supreme Court is more than just a legal body: the Justices are also "rulers," sharing in the quintessentially political function of authoritatively allocating values for the American polity. Representing a coordinate branch of the national government, they address their mandates variously to lawyers, litigants, federal and state legislative, executive, and judicial officials, and to broader concerned "publics." Concerning their role, no sharp line can be drawn between law and politics in the broad sense. They do not expound a prolix or rigid legal code, but rather a living Constitution "intended to be adapted to the various crises of human affairs," as Chief Justice Marshall said in the McCulloch case. And the Justices employ essentially common law judicial techniques: they are inheritors indeed, but developers too—"weavers of the fabric of constitutional law"—as Chief Justice Hughes observed. The nature of the judicial process and the growth of the law are intertwined. The Constitution, itself the product of great policy choices, is both the abiding Great Charter of the American polity and the continual focus of clashing philosophies of law and politics among which the Supreme Court must choose: "We are very quiet there," said Justice Holmes plaintively, "but it is the quiet of a storm center, as we all know."

Howard E. Dean


Cardozo, Benjamin N. 1921 The Nature of the Judicial Process. New Haven, Conn.: Yale University Press.

Levi, Edward H. 1948 An Introduction to Legal Reasoning. Chicago: University of Chicago Press.

Miller, Arthur Selwyn 1978 The Supreme Court: Myth and Reality. Westport, Conn.: Greenwood Press.

Murphy, Walter F. 1964 Elements of Judicial Strategy. Chicago: University of Chicago Press.

Pritchett, C. Herman 1969 The Development of Judicial Research. Pages 27–42 in Joel B. Grossman and Joseph Tanenhaus, eds., Frontiers of Judicial Research. New York: Wiley.

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