Policy Making in the United States
An approach used by judges, particularly appeals judges, as they perform their basic case review function. Judges who engage in policy making intentionally fashion new norms as they reach decisions. Such judges believe that the judicial role is not merely to apply the norms established by others, but to supply their own when necessary. The opportunity to make policy will not exist in every case, nor do judicial policy makers avail themselves of every opportunity that does present itself. Policy making by a judge takes place when a norm is challenged by a party to a case under review, and the court rules in the challenger’s favor. While policy making can occur in cases where appellate courts are engaged in statutory construction, it is more likely where judicial review is involved.
Analysis and Relevance
Judicial policy making involves the setting of norms by
judges. Such policy making is undertaken consciously. In many ways, policy making is judicial activism. The judge who pursues a policy making course believes that courts are as legitimate a source of norm creation as, for example, administrative agencies and possibly even legislative bodies. Judicial policy making is manifest in a number of ways. One of these ways is to create policy by interpretation of the Constitution. The formal recognition of a right of privacy in Griswold v. Connecticut (381 U.S. 479: 1965) is an obvious example. The Consti-tution contains no explicit right of privacy, and yet the Court declared such a right exists by implication from provisions of other enumerated rights. Second, courts can develop and oversee the administration of new norms. Judicial establishment of the one person-one vote principle, and the administration of this principle in legislative apportionment situations is illustrative. Finally, rather than validate policy set elsewhere, the courts can nullify such policy and substitute their own preferences. The Supreme Court engaged in this kind of policy making during the 1930s when it found many of the New Deal initiatives unconstitutional.
Notes and References
- Definition of Policy Making from the American Law Dictionary, 1991, California