Judicial Policy Making

Judicial Policy Making in the United States

The nature of the policy making activity of any particular court is governed by its location in the organizational structure. Appeals courts generally have a different kind of policy making role from trial courts. Appellate court policy making has several distinctive features. First, decisions of appeals courts are intended to establish rules and principles to be followed by lower courts when similar issues arise in the future. The importance of this function is seen, for example, in the activities of interest groups. They involve themselves in litigation hoping the courts will embrace their positions on a particular policy question. Second, appellate policy making is conveyed through written explanations of the decisions. The opinions become the substance of the precedent a case sets. Third, appellate courts are better able than trial courts to enlarge the scope of a case beyond the parties and their fact dispute. While this is not always done, it may allow an appellate court to more fully consider the broader policy implications ofa case. Finally, judicial policy set by appellate courts has heightened significance because it often involves review of already existing gov-ernment policy, usually policy initiated by the legislative or executive branches.

Analysis and Relevance

Bankruptcy proceedings allow persons or businesses to free themselves from accumulated indebtedness they could never pay off. Such protection has existed in some form since early in American history when a number of states enacted insolvency laws. While states may still legislate in the area, federal law supercedes state law at any point of conflict. Bankruptcy matters under the several federal Bankruptcy Acts (1898, 1933, 1978, and 1984) historically were handled by the U.S. district courts as part of their equity jurisdiction. As the volume of cases grew, district judges delegated these cases to referees. In 1978, Congress sought through the Bankruptcy Reform Act to create an independent bankruptcy court using the Article I power to create legislative courts. This act was struck down by the Supreme Court in Northern Pipeline Construction Company v. Marathon Pipe Line

The policy making significance of the trial courts is more limited. Cases at this level are bound by the narrow parameters of the fact dispute. As a result, many see the role of trial courts as enforcing policies established elsewhere, rather than engaging in policy making of their own. An alternative perspective would suggest that policy is made at the trial level through patterned responses to particular categories of disputes. Patterned responses to such matters as pretrial release, criminal sentencing, child custody, or zoning ordinance issues are examples of cases where consistently applied judicial values essentially set policy.

Considerations of judicial policy making almost always prompt the normative question of the extent to which courts should pursue policy opportunities—the degree to which judges ought to be judicial activists. Judicial activism would have judges pursue a course that would maximize their impact on policy. While American courts have engaged in activism since the time of John Marshall, contemporary courts seem to be activist to an unprecedented degree. One possible explanation is that courts are presented with more questions about the legality of governmental policies and practices. As government regulation becomes more pervasive at all levels, more legal challenges follow. Large numbers of interest groups have compounded the situation by actively seeking to generate policy challenges.


There are, however, limits that apply to judicial policy making. Some limits are self-imposed in that a large number of judges reject judicial activism and subscribe instead to the judicial self-restraint. Beyond that, substantial limits exist because of the principle of separation of power. While courts have the power to decide cases, they do not possess the authority to enforce them. Rather, such power resides with the legislative and executive branches. In addition, such matters as judicial selection, jurisdiction, and numbers of judges on a court are legislative issues. Courts that engage in policy making of a kind unacceptable to the legislature may eventually find themselves subject to legislative “court curbing.” Other limiting factors exist as well. Courts tend to make policy of a narrower scope than do legislatures. The focused character of the case format acts to limit the span of a court’s considerations. Neither can courts create the cases that require judicial decisions. Rather, they must wait for parties external to the courts to bring the policy “vehicles” to them in the form of cases.

Notes and References

  1. Definition of Judicial Policy Making from the American Law Dictionary, 1991, California






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