Commentary Magazine

Are the Courts Going Too Far?

The last two decades have been a period of considerable expansion of judicial responsibility in the United States. Although the kinds of cases judges have long handled still occupy most of their time, the scope of judicial business has broadened. The result has been involvement of courts in decisions that would earlier have been thought unfit for adjudication. Judicial activity has extended to welfare administration, prison administration, and mental-hospital administration, to education policy and employment policy, to road building and bridge building, to automotive-safety standards, and to natural-resource management.

In just the past few years, courts have struck down laws requiring a period of in-state residence as a condition of eligibility for welfare. They have invalidated presumptions of child support arising from the presence in the home of a “substitute father.” Federal district courts have laid down elaborate standards for food handling, hospital operations, recreation facilities, inmate employment and education, sanitation, laundry, painting, lighting, plumbing, and renovation in some prisons; they have ordered other prisons closed. Courts have established equally comprehensive programs of care and treatment for the mentally ill confined in hospitals. They have ordered the equalization of school expenditures on teachers’ salaries, established hearing procedures for public-school discipline cases, decided that bilingual education must be provided for Mexican-American children, and suspended the use by school boards of the National Teacher Examination and of comparable tests for school supervisors. They have eliminated a high-school diploma as a requirement for a fireman’s job. They have enjoined the construction of roads and bridges on environmental grounds and suspended performance requirements for automobile tires and air bags. They have told the Farmers Home Administration to restore a disaster-loan program, the Forest Service to stop the clear-cutting of timber, and the Corps of Engineers to maintain the nation’s non-navigable waterways. They have been, to put it mildly, very busy, laboring in unfamiliar territory.

What the judges have been doing is new in a special sense. Although no single feature of most of this litigation constitutes an abrupt departure, the aggregate of features distinguishes it sharply from the traditional exercise of the judicial function.

First of all, many wholly new areas of adjudication have been opened up. There was, for all practical purposes, no previous judge-made law of housing or welfare rights, for example. To some extent, the new areas of activity respond to invitations from Congress or, to a much lesser extent, from state legislatures. Sometimes these take the form of judicial-review provisions written into new legislation. Sometimes they take the form of new legislation so broad, so vague, so indeterminate, as to pass the problem to the courts. They then have to deal with the inevitable litigation to determine the “intent of Congress,” which, in such statutes, is of course nonexistent.

If some such developments result from legislative or even bureaucratic activity (interpretation of regulations, for example), then it is natural to see the expansion of judicial activity as a mere concomitant of the growth of the welfare state. As governmental activity in general expands, so will judicial activity.

But that is not all that is involved. Much judicial activity has occurred quite independently of Congress and the bureaucracy, and sometimes quite contrary to their announced policies. The very idea is sometimes to handle a problem unsatisfactorily resolved by another branch of government. In areas far from traditional development by case law, indeed in areas often covered densely by statutes and regulations, the courts have now seized the initiative in lawmaking. In such areas, the conventional formulation of the judicial role has it that courts are to “legislate” only interstitially. With the important exception of judicial decisions holding legislative or executive action unconstitutional, this conventional formulation of what used to be the judicial role is probably not far from what judges did in fact do. It is no longer an adequate formulation.

What the courts demand in such cases, by way of remedy, also tends to be different. Even building programs have been ordered by courts, and the character of some judicial decrees has made them, de facto, exercises of the appropriation power. A district court order rendered in Alabama had the effect of raising the state’s annual expenditure on mental institutions from $14 million before suit was filed in 1971 to $58 million in 1973, a year after the decree was rendered. Decisions expanding welfare eligibility or ordering special education for disturbed, retarded, or hyperactive pupils have had similar budgetary effects. “For example, it is estimated that federal court decisions striking down various state restrictions on welfare payments, like residency requirements, made an additional 100,000 people eligible for assistance.”1 It is no longer even approximately accurate to say that courts exercise only a veto. What is asked and what is awarded is often the doing of something. not just the stopping of something.



To be sure, courts have always had some say in the way public funds were spent. How else could they award damages against the government? But even in the aggregate, decisions ordering a municipality to pay for an injury sustained by someone who trips over a loose manhole cover are not generally important enough to influence the setting of public priorities. The recent decisions that require spending to achieve compliance with a newly articulated policy are something else again.

It is also true that both affirmative and negative relief (orders to do something and orders to stop doing something) have a long history in English equity jurisprudence. The hoary remedies of mandamus and specific performance both require affirmative action—but action of a very circumscribed, precise sort, the limits of which are known in advance of the decree. Mandamus traditionally compels performance of an official duty of a clear and usually trivial sort; generally, compliance is measured by performance of one or two simple acts. Specific performance compels compliance with certain kinds of contractual obligation, the exact nature of the obligation spelled out in the contract. But specific performance is not traditionally awarded to compel performance of a contract for personal services, one significant reason being that the courts would then find themselves deep in the management of a continuing relationship, perhaps a whole business enterprise.

Again, therefore, compelling the performance of certain affirmative acts is nothing new in principle, but it is new in degree. The decree of a federal district judge ordering mental hospitals to adhere to some eighty-four minimum standards of care and treatment represents an extreme in specificity, but it is representative of the trend toward demanding performance that cannot be measured in one or two simple acts but in a whole course of conduct, performance that tends to be open-ended in time and even in the identity of the parties to whom the performance will be owed. Remedies like these are reminiscent of the kinds of programs adopted by legislatures and executives. If they are to be translated into action, remedies of this kind often require the same kinds of supervision as other government programs do.

This leads to still another difference in degree between adjudication as it once was and as it now is. Litigation is now more explicitly problem-solving than grievance-answering. The individual litigant, though still necessary, has tended to fade a bit into the background. Courts sometimes take off from the individual cases before them to the more general problem the cases call up, and indeed they may assume—dubiously—that the litigants before them typify the problem.

Once again, of course, it is all too easy to fabricate an idealized judicial past that consigned judges merely to resolving individual disputes. It has not been that way. In articulating the law of negligence from one case to the next, judges have tried to lay down a standard of care calculated to reduce the incidence of personal injury and property damage without unduly raising the expense of doing so. Many other common-law rules could be described in similar terms, as much efforts to frame behavioral standards as to apply them. Some of the most formidable difficulties faced by common-law judges have arisen in cases that present the judges with an inescapable choice between doing justice in the individual case and doing justice in general.

For all that, however, the individual and his case remained indispensable. Courts paid particular attention to the interplay between the facts of the individual case and the facts of the class of cases they projected from it. Without the particular case, the task of framing standards was devoid of meaning. It is inconceivable, for example, that even a great, innovative common-law court like the New York Court of Appeals early in this century would have countenanced deciding a case that had become moot. That some issues might forever escape judicial scrutiny because of the doctrine that a moot case is not a case at all would have struck even bold judges of a few decades ago as entirely natural.

Today it is repellent to many judges. For the view has gained ground that the judicial power is, by and large, coterminous with the governmental power. One test of this is the withering of the mootness doctrine in the federal courts. The old prohibition on the decision of moot cases is now so riddled with exceptions that it is almost a matter of discretion whether to hear a moot case. The argument for deciding a case that has become moot is often the distinctly recent one that there is a public interest in the judicial resolution of important issues. In contrast, the earlier view was that there was a public interest in avoiding litigation. By the same token, dismissal for mootness has become a practice reserved for invocation when it is unimportant, inconvenient, or impolitic to decide the issues a case raises.

What this shift signifies is the increasing subordination of the individual case in judicial policymaking, as well as the expansion of judicial responsibility more nearly to overlap the responsibilities of other governmental institutions. The individual case and its peculiar facts have on occasion become mere vehicles for an exposition of more general policy problems. Consequently, somewhat less care can be devoted, by lawyers and judges alike, to the appropriateness of particular plaintiffs and to the details of their grievances.

At the same time, the courts have tended to move from the byways onto the highways of policy-making. Alexander M. Bickel has captured, albeit with hyperbole, the thrust of the new judicial ventures into social policy. “All too many federal judges,” he has written, “have been induced to view themselves as holding roving commissions as problem solvers, and as charged with a duty to act when majoritarian institutions do not.” The hyperbole is itself significant: many federal judges regard themselves as holding no such commission, yet even they have embarked on “problem-solving” ventures. This is the surest sign that the tendency is not idosyncratic but systemic: it transcends, in some measure, individual judicial preference and calls for systematic explanation.



The remote sources of the broad sweep of judicial power in America lie deep in English and American political history. The immediate origins of recent shifts in judicial emphasis are another matter. These are several, and they have tended to build on each other.

Most obvious has been the influence of the school-desegregation cases. These decisions created a magnetic field around the courts, attracting litigation in areas where judicial intervention had earlier seemed implausible. The more general judicial activism of the Warren Court signaled its willingness to test the conventional boundaries of judicial action. As this happened, significant social groups thwarted in achieving their goals in other forums turned to adjudication as a more promising course. Some organizations saw the opportunity to use litigation as a weapon in political struggles carried on elsewhere. The National Welfare Rights Organization, for example, is said to have turned to lawsuits to help create a state and local welfare crisis that might bring about a federal guaranteed income. The image of courts willing to “take the heat” was attractive, too, to legislators who were not. Such social programs as the poverty program had legal-assistance components, which Congress obligingly provided, perhaps partly because they placed the onus for resolving social problems on the courts. Soon there were also privately funded lawyers functioning in the environmental, mental-health, welfare-rights, civil-rights, and similar fields. They tended to prefer the judicial road to reform over the legislative. They raised issues never before tested in litigation, and the courts frequently responded by expanding the boundaries of judicial activity.

Major doctrinal developments both followed and contributed to the increase in number and the change in character of the issues being litigated. The loosening of requirements of jurisdiction, standing, and ripeness (to name just three) helped spread judge-made law out, moving it from the tangential questions to the great principles. If these doctrinal decisions mean anything, it is that the adjudicative format is less and less an inhibition on judicial action and that the lawsuit can increasingly be thought of as an option more or less interchangeable with options in other forums, except that it has advantages the other forums lack. Hence the time-honored tradition that those who lose in the legislature or the bureaucracy may turn to the courts has lost none of its appeal. Only the identity of those who turn from one forum to another has undergone some change. Deprived social groups have joined the advantaged in the march to the courthouse. But where the wealthy invariably want the courts to strike down action the other branches have taken, the disadvantaged often ask the courts to take action the other branches have decided not to take. The character of the demand for action is therefore different.

Some major obstacles of a practical sort have also been cleared away. It still takes years to conclude most litigation, but some courts have shown a willingness to expedite hearing schedules to speed up the disposition of injunction cases. It still costs large sums of money to bring suit, and reductions in foundation funding of public-interest law firms are contracting their efforts. But decisions awarding attorneys’ fees may have eased the hardship and proliferated the cases. In one decision, an attorney’s fee was awarded even though the plaintiff’s lawyer had agreed to represent him without charge. The court said the award would encourage lawyers to represent public-interest clients without fees in the hope that a fee would be awarded—and no doubt it would have that effect. In 1975, the Supreme Court restricted the award of attorneys’ fees in federal cases unless authorized by Congress. But many statutes do allow attorneys’ fees, and proposed legislation in some areas may be more generous in allowing expert witness fees as well.

It is still true, too, that legislative remedies—when they are forthcoming—may be more systematic and inclusive than judicial remedies. Yet more often than not, the judicial remedy has a directness, a concreteness, and a lack of equivocation notably absent in schemes that emerge from the political process. More and more, the courts have turned to decrees that afford comprehensive relief, often of a far-reaching sort. Support in the Anglo-American equity tradition for a decree as broad as the occasion warrants is unmistakable. The problem of school desegregation has tested this tradition, and the judges have sometimes proved as resourceful as the English chancellors from whom their equitable powers spring. In the process, the willingness to entertain remedies as inclusive as those a legislature might provide has grown, even to the point where the judicially ordered consolidation of school districts or equalization of tax burdens across districts—wholly beyond imagination not long ago—have become debatable measures, indeed litigated issues.

All of this has taken place, perhaps could only take place, in a society given to an incomparable degree of legalism. In the United States, as Tocqueville observed long ago, “all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. . . . The language of the law thus becomes in some measure a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the taste of the judicial magistrate.” The American proclivity to think of social problems in legal terms and to judicialize everything from wage claims to community conflicts and the allocation of airline routes makes it only natural to accord judges a major share in the making of social policy. No doubt, this underlying premise in American thought was a necessary, though insufficient, condition for the expansion of judicial responsibility that has taken place over the last twenty years.



The tendency to commit the resolution of social-policy issues to the courts is not likely to be arrested in the near future. The nature of the forces undergirding the tendency makes them not readily reversible. Doctrinal erosion in particular is not easily stopped. Ironically, perhaps, the traditional judicial conception of precedent makes it more difficult for courts to change course dramatically than for the other branches of government to do so. The generally greater stability of judicial personnel, appointed for life in the federal courts, appointed or elected to long terms in the states, also makes for continuity. The statutes already enacted and continuing to be enacted, lodging authority for policy-making in the courts by explicit provision or by default, are enough to propel judicial activity for some time to come. And the attractiveness of passing problems to the judges is unabated. The new responsibilities of the courts are not just the product of individual states of mind.

Even to the limited extent that judges can contract their recently expanded commitments, some curious twists are possible. Supreme Court Justices, appointed because a President thinks they will construe the Bill of Rights more narrowly than their predecessors, have a way of becoming entangled in institutional tradition. No contraction is likely to take place on all fronts.

Beyond that, expansive exercises in statutory construction may be untouched by a contraction in constitutional adjudication. As a matter of fact, judges who recoil at innovation in constitutional lawmaking may not see the same dangers at all in the interpretation of statutes. It is customary to think that judicial self-limitation in constitutional interpretation is important because constitutional law is a permanent inhibition on policy: a legislature cannot override an interpretation of the Constitution. In statutory law, judges may reason, basic policy choices have been made by other branches, and judicial construction may later be overridden by them. For these reasons, judges with a strong sense of institutional limitation are less likely to let it stand in the way of innovation short of constitutional interpretation.

The soundness of this conventional distinction between the scope of constitutional and non-constitutional adjudication need not detain us here. Whether or not decisions that rest on constitutional foundations are really more permanent than those that do not is beside the point—which is simply that traditional counsels of restraint that apply to the former do not apply to the latter. Judges concerned to avoid the excesses that are believed to have characterized the Supreme Court of the 1930’s and 1960’s may still embark on ambitious ventures of judicial reform in the name of statutory construction.

Let me give two examples. Both, as it happens, are from the civil-rights field, and both are decisions of the Supreme Court, but they might just as easily have come from some other court acting in some other field.

The first is Griggs v. Duke Power Co., in which the Court unanimously read Title VII of the Civil Rights Act of 1964 to require the elimination of tests and diplomas as job requirements if they disqualify prospective black employees at a higher rate than whites, unless the employer can show that the test or diploma bears a “demonstrable relationship” to successful job performance. Employment practices that have no discriminatory intent, the Court said, are to be measured by “business necessity.” Tests that prevent minority applicants from obtaining jobs in proportion to their numbers must be shown to “measure the person for the job and not the person in the abstract.” So the Court, in an opinion by Chief Justice Burger, interpreted the Civil Rights Act.

The act had forbidden job discrimination on grounds of “race, color, religion, sex, or national origin.” An amendment, added on the floor of the Senate in order to clarify and reaffirm the rights of employers to use “ability tests” to screen potential employees, had insulated such tests from scrutiny, provided the tests were “not designed, intended, or used to discriminate” on racial or other forbidden grounds. That, at least, is what the Senators thought.

In the event, the Supreme Court read the word “used” to mean used intentionally or unintentionally, and so to forbid tests like the aptitude test used in Griggs unless the employer could prove it measured job performance in the narrow sense.

There is convincing legislative history to show that Congress intended the opposite of the result reached in Griggs. This was a provision on which Congress was at pains to make itself clear. The sponsors of the testing amendment explicitly wished to insure that no court would prohibit a testing procedure to evaluate applicants because some categories of applicants might do better on the test than others. The Senators plainly believed that general intelligence and aptitude tests were job-related, and meant to exempt them from the act for that reason. It is not surprising, therefore, that the Court’s handling of the legislative history is halting and embarrassed.

Griggs has already been interpreted very broadly by lower federal courts to require a number of significant changes in public and private employment practices. There have been suggestions that Grigg’s requirement of expensive validation of employment tests may cause firms to abandon testing and move to more subjective (and potentially more biased) methods of screening applicants—or, on the other hand, to proportional hiring on a racial basis in order to avoid charges of discrimination. Either way, the result contravenes the twofold legislative intention, which was to forbid preferential hiring on a racial basis and “to allow an employer’s bona fide use of professionally developed tests despite their disparate impact on culturally disadvantaged minorities.”

In its skepticism about aptitude tests and formal credentials, Griggs accords with some recent research questioning the predictive value of such requirements for job performance. But Griggs cannot be understood as a traditional exercise in statutory exegesis.2



The second example is Lau v. Nichols. Lau arose under Title VI of the Civil Rights Act of 1964, which forbids discrimination on grounds of “race, color, or national origin” in “any program or activity receiving federal financial assistance.” As a condition of federal aid, the Department of Health, Education, and Welfare had required school districts to “take affirmative steps to rectify the language deficiency” of “national-origin minority group children” unable to speak and understand English. So enlarged by the regulations, the act was read by the Supreme Court, 9-0, to require the San Francisco school system to take some action to rectify the language deficiencies of some 1,800 Chinese-American pupils (most of them born in the United States) who do not speak English.

The decision has already had important consequences across the nation. Indeed, it is one of the ironies of Lau that, though it was rendered in the case of Chinese-origin pupils, it will affect primarily the rights of Spanish-speaking children all over the United States. The decision has been widely interpreted—erroneously—as requiring “bilingual-bicultural” education, rather than remedial instruction in English. Stimulated by Lau, the Texas legislature has recently enacted a law making bilingual education mandatory in schools with twenty or more children whose ability in English is limited, and there are movements for bilingual education in several other states. The decision will no doubt affect instructional programs and language choice across the nation.

Lau may be interpreted as a judicial experiment. The Court did not hold that any particular action was required of the school system—only that inaction was forbidden. The case was remanded to the district court for the fashioning of relief, and the Court may have thought there would be time enough for a second look after a decree was entered.

This may explain the offhanded way in which the case was disposed of, for the majority and concurring opinions contain no serious discussion of the central issues of the litigation: whether it constitutes discrimination to teach all pupils in English regardless of their fluency at the time they enter school, and whether, in any event, linguistic discrimination constitutes discrimination on the basis of “race, color, or national origin.” Discrimination is generally thought of as differential treatment. What was complained of in Lau was the failure to differentiate in the instruction given pupils fluent in Chinese and not fluent in English. Similarly, linguistic loyalty and national origin are related but are not the same thing. No claim was made in Lau that Chinese-origin pupils were affected adversely by the policies of the school system—only that monolingual, Chinese-speaking pupils (most of whom had their “national origin” in the United States) were so affected. There is little in the language of Title VI that suggests it contemplates affirmative action to remedy linguistic deficiencies, and there is nothing in the legislative history that hints at such a purpose.

These two seminal decisions of the Burger Court—neither of which drew a single dissent—should suffice to show that judicial participation in the making of social policy is no ephemeral development. It is part of a chain of developments that can survive the vicissitudes of constitutional “activism” and “restraint.” No one could mistake these decisions for “interstitial” statutory interpretation, since they are departures from the language and legislative history of the statutes they construe. Nor does it need to be stressed that these decisions were not solely the work of judges who “view themselves as holding roving commissions as problem solvers.” That they do not so regard themselves attests to the structural and enduring character of the phenomena I have been describing.



The appropriate scope of judicial power in the American system of government has periodically been debated, often intensely. For the most part, what has been challenged has been the power to declare legislative and executive action unconstitutional. Accordingly, the debate has been cast in terms of legitimacy. A polity accustomed to question unchecked power views with unease judicial authority to strike down laws enacted by democratically elected legislatures. Where, after all, is the accountability of life-tenured judges? This question of democratic theory has been raised insistently, especially in times of constitutional crisis, notably in the 1930’s and again in the 1950’s.

The last word has not been heard in these debates, and it will not soon be heard. The structure of American government guarantees the issue a long life. But, for the moment, the debate seems to have waned with the growing recognition that there are elements of overstatement in the case against judicial review. The courts are more democratically accountable, through a variety of formal and informal mechanisms, than they have been accused of being. Equally important, the other branches are in many ways less democratically accountable than they in turn were said to be by those who emphasized the special disabilities under which judges labor. Hence the many academic discussions of the need for “representative bureaucracy,” for a less insular Presidency, and for reform of the procedures and devices that make Congress undemocratic internally and unrepresentative externally. (That students of any single institution often tend to see that institution as the flawed one is a useful indication of the limited perspective that comes from single-minded attention to any one institution. It should properly make us chary of drawing inferences about the courts without an institutionally comparative frame of reference.)

As the debate over the democratic character of judicial review wanes, there is another set of issues in the offing. It relates not to legitimacy but to capacity, not to whether the courts should perform certain tasks but to whether they can perform them competently.

Of course, legitimacy and capacity are related. A court wholly without capacity may forfeit its claim to legitimacy. A court wholly without legitimacy will soon suffer from diminished capacity. The cases for and against judicial review have always rested in part on assessments of judicial capacity: on the one hand, the presumably superior ability of the courts “to build up a body of coherent and intelligible constitutional principle”; on the other, the presumably inferior ability of courts to make the political judgments on which exercises of the power of judicial review so often turn. If the separation of powers reflects a division of labor according to expertise, then relative institutional capacity becomes relevant to defining spheres of power and particular exercises of power.

The recent developments that I have described necessarily raise the previously subsidiary issue of capacity to a more prominent place. Although the assumption of new responsibilities can, as I have observed, be traced to exercises of the traditional power to declare laws unconstitutional, they now transcend that power. Traditional judicial review meant forbidding action, saying “no” to the other branches. Now the judicial function often means requiring action, and there is a difference between foreclosing an alternative and choosing one, between constraining and commanding. Among other things, it is this difference, and the problematic character of judicial resources to manage the task of commanding, that make the question of capacity so important.

Yet judicial intervention in matters of social policy has greatly increased and will not soon decrease. This expansion of judicial responsibility means, first, a broadening of the sphere of judge-made law, into areas that might once have been called “social welfare” and were not considered “legal” at all. It also means an expansion of the scope for judicial initiative within these areas. Courts are no longer as confined to the interstices of legislation as they once were—now the statute is often a mere point of departure—and they are no longer as inhibited as they once were from delving into supervisory or administrative responsibilities in connection with the remedies they award. They are more often found requiring detailed, affirmative, and specific action than previously. They are less constrained, too, by the limitations of the cases and the litigants before them. More openly, self-consciously, and broadly than before, the courts are engaged in efforts to shape or control the behavior of identifiable social groups, groups not necessarily before the court: welfare administrators, employers, school officials, policemen.



What this means is that there is somewhat less institutional differentiation today than two decades ago. There is now more overlap between the courts and Congress in formulating policy and between the courts and the executive in both formulating and carrying out programs. That is, the types of decisions being made by the various institutions—their scope and level of generality—seem to be converging somewhat, though the processes by which the decisions are made and the outcomes of those processes may be quite different—as different as the groups who maneuver to place an issue before one set of decision-makers rather than another, or who, defeated in one forum, turn hopefully to the next, believe them to be. Thus, to say that there is convergence in the business of courts and other institutions is not tantamount to saying that it makes no difference who decides a question. On the contrary, it matters a good deal, for the institutions are differently composed and organized. The real possibility of overlapping responsibilities but opposite outcomes makes the policy process a more complex and drawn-out affair than it once was.

The recency, the incompleteness, and the incremental history of these developments should not obscure their portentousness. It is just possible that these modifications in the scope of judicial power will one day amount to a major structural change. We regard as quaintly and unduly restrictive the medieval conception of legislation as mere restatement of customary law. Future generations may likewise view our distinctive association of adjudication with the grievances of individual litigants as an equally curious affectation.

It may be, of course, that something much less significant than this is in the offing. For the purposes of this discussion, it makes little difference. The changes of degree that are already visible are quite enough to raise important questions about the consequences of using the judicial process for the resolution of social-policy issues.

Many of the most serious questions relate to the way in which courts get their information. Consider the position of the judge. His formal function is to decide a dispute between two parties, a role for which his training and experience generally equip him well. The legal rules and machinery through which the judge works are also geared to the controversy between the parties. Virtually all of the conventions of litigation leave the initiative to the parties. What they elicit, the judge hears. What they neglect, he neglects. The rules of evidence are also designed with the litigants’ case, and that alone, in mind. Evidence about their relationship, their characteristics, their transactions, is generally relevant and admissible. Evidence about more general conditions is often inadmissible and, when admissible, is treated far more circumspectly, both by the law and by the judges who apply it.

Most of the time these rules and conventions are well adapted to the business of the courts. Focusing on litigants and their controversy is perfectly appropriate when their own controversy is all that is at stake. But when questions of social policy arise in the guise of a lawsuit, that is another matter. Then the controversy between the litigants is really secondary to the larger questions that their lawsuit raises. The judge can learn all there is to learn about the parties and their dispute without being very much wiser about the general problem their case is said to reflect.

As a matter of fact, the judge may be seriously misled if he pays close attention to the facts of the case before him, for that case is almost surely unrepresentative of the general class of cases it is supposed to represent. Enough is known about when and why people bring suit to know that the average plaintiff is not just like everybody else with a similar problem. No lawyer who seeks a favorable decision in welfare rights or prison reform or any other field will, if given a choice, be content to bring just a run-of-the-mill case to court. Instead, he will choose the worst case, the most extreme case, that comes his way.

So the cases that come to court are by no means typical, and a judge who masters the facts of the case before him has at best a very rough—and sometimes stereotyped—idea of the dimensions of his policy problem. How the courts are to inform themselves of the diverse social conditions that are increasingly relevant to decision is a question that insistently demands an answer.

The judge’s difficulties, however, only begin there. After he is convinced that some unlawfulness has been identified, a remedy has to be devised. At this point, the judge, like all other policy-makers, has gone into the prediction business. He has to sense what is required to get the results he aims at, and he must forecast the consequences of various alternative decrees that might be formulated.

Yet the same rules, conventions, and procedure that focus the judge’s attention on the litigants and the history of their controversy also focus the judge on the past more than the future. Since court decisions declare rights and duties arising out of previous transactions, the framing of the decree usually gets far less meticulous attention than does proof of the “wrongs” which give rise to the decree. Litigation tends to be backward-looking, and orienting it toward forecasting is no simple matter.



Questions also remain about the way in which court orders are carried out. Accustomed to thinking in terms of “compliance” or “noncompliance,” judges do not necessarily sense the scope that exists for effectuating a judicial decree in one way rather than another. Yet what happens to a decree after it leaves the courthouse is every bit as important as what has gone before.

In fact, the accessibility and rationality of the judicial process may lead the participants to think that the problem of implementation is more straightforward than it is. One reason the policy issue is in court at all may be that action on it has been thwarted in the other branches of government by the myriad influences and interests that are represented there. In court, fewer interests are represented, and fewer still are in a position to thwart action. Hence the attractiveness of the judicial forum for groups that find it hard to get their way in the other branches.

The judicial process thus reduces the number of participants and makes it possible to cut through to an apparent solution. But the courts cannot make the complex pattern of interests disappear altogether. If all the parties who have some stake in, a policy decision one way or the other are not fully represented in court, they may nonetheless reappear and make their influence felt at the implementation stage. And so the judge who decrees this or orders that may later find that he has in fact produced something rather different from what he had in mind. The simplification of social and political complexity that occurs in the courtroom is only temporary.

After a number of such experiences, sensitive judges may well wonder whether the institution over which they preside, admirably suited as it is to processing individual cases, is really the right setting in which to thrash out the perplexing social-policy questions that increasingly come to court. Some judges may begin to think of ways to augment their capacity; others may prefer to emphasize the venerable canons of judicial restraint. And some may ultimately come to embrace Jeremy Bentham’s blunt assertation that “amendment from the judgment seat is confusion.”


1 Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change, Yale University Press, 1974, p. 126.

2 It is interesting to note that the Court has recently declined to extend the rigorous Griggs standards for employment tests to cases arising under the Constitution rather than under Title VII. This may suggest that the majority is unhappy with what the lower courts have done with Griggs, and wishes to confine the impact of the decision. But it is also consistent with the thesis that some Justices are willing to be bolder in statutory interpretation than in constitutional interpretation.

About the Author

Pin It on Pinterest

Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
for full access to
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
Don't have a log in?
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.