The courts make policies and over the last 5 decades, they have played a significant role in policymaking in the country. Policy is a statement of intent whose implementation is in the form of a procedure or protocol. Therefore, policymaking is deciding how and what is to be done by choosing from possible methods, principles, and actions. The courts, especially the appellate courts like the Supreme Court, make such choices which then establish new principles and rules which guide what is to be done. The courts are involved in the process of policymaking both directly and indirectly. However, a simplistic view of the separation of power has obscured the role played by the judiciary in policymaking.
In the United States, the Courts have a significant role in policymaking which has a large effect on the criminal justice system. The role of judicial review is bestowed upon the Supreme Court. The Marbury v. Madison case in 1803 created a precedent for judicial review in the United States and the power is still being exercised in the Supreme Court (Grossmann & Swedlow, 2015). Judicial review has never been incorporated in the constitution but rather the Supreme Court inferred that authority to itself in Marbury v. Madison's decision. It gives the Court the authority to make a determination whether the acts of Congress are in line with the U.S. Constitution.
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The courts are also mandated to interpret the law. The power gives the courts an opportunity to make criminal justice policy. The clause that talks about the due process have been a significant tool in shaping policies by using the power of interpreting the law by the courts. The reason for that is that the clause on due process is very vague that it gives the courts the latitude of determining what is required of the due process which is in turn making of policy. An example is how the police procedures evolved during the tenure of Warren Court where policies affecting the police procedures were made by the Court. During the period of 15 years when Earl Warren was the Chief Justice of the U.S., there were significant changes in the criminal procedures that changed and made policies (Feeley & Rubin, 2000). The changes had a critical impact on the administration of criminal justice in the United States.
Some scholars have argued that the judiciary should act in a modesty manner. They argue that courts should only cancel acts originating from the legislative arm of government when the laws directly conflict with a specific constitutional provision. However, some are opposed to that ideology arguing that the court should also consider the spirit of the constitution when making a decision on whether to strike down a law from the legislature or not. Some courts have restrained themselves from making policy arguing that it is best that policymaking is left to the legislative branch (Barnes, 2017). Such an act is possible in the United States system because of how it is structured. Most justices, however, hold the opinion that the courts should play an active role in cases that involve civil rights and civil liberties.
Although the Supreme Court is supposed to interpret the law, it does that with political influence. No matter how well the justices in the Supreme Court mean in the interpretation of the law, their perceptions are significantly influenced or motivated by their personal political beliefs. There are two major personalities in the court system, the liberals and the conservatives. Decisions that tend to favor the police and the criminal justice system, in general, come from courts with conservative personalities. These courts tend to restrict themselves from making policies as they feel that things should remain the way they are (Tarr, 2013). On contrary, courts with liberal judges tend to make decisions that are viewed as favoring the minority, defendants, people claiming to be discriminated against or their rights are being violated. Courts with liberal justices are mostly involved in policymaking because they feel that there should be changes in the criminal justice system to address the current trends in the system.
Another factor that influences policymaking in the courts is differences based on judicial activism and judicial activism. In judicial restraint, the argument is that policymaking should be left to democratic processes. The ideology is that the democratic process should directly make policies and make changes to policies if necessary and therefore the courts have no role to play in either policy changes or making. They argue that, since justices are appointed and not elected, they are not the right people to make or change policies (Barnes, 2007). That means that policymaking should be left to the legislative branch which is the voice of the people through their representatives. On the other hand, judicial activists argue that courts should play an active role to ensure that all Americans get their civil rights and civil liberties. They should be involved in righting the wrongs that are created by other branches of society in general. To achieve that, they make policies that they deem right.
The courts should be allowed some space to be dynamic because of the evolving technological society. For example, when the Fourth Amendment was enacted the technology was not where it is now. If the constitution was to be applied literary, a law enforcement office would “seizure” a person’s phone, emails, or text messages without a warrant. Such things did not exist while the fourth amendment was written and therefore things like protection of personal information contained in such things are not there (Barnes, 2017). Therefore, there should be a balance to prevent obscuring the democratic process and allowing the courts to make the constitution relevant by making policies.
The constitution and other regulations create a legal framework that controls the courts to avoid excess power while making policies. Some basics have to be met before federal courts can hear cases and they can only exercise judicial powers. Therefore, federal courts can only hear and determine legal disputes as stipulated under Article III. The constitution also limits the ability of courts in policymaking by indicating that an attempt to correct an issue through their own initiative is unconstitutional. They cannot also answer hypothetical questions on a legal basis (Grossmann & Swedlow, 2015). The federal courts have limited jurisdiction because they can only listen to cases that are provided for by the U.S. Constitution and Congress.
In conclusion, the courts, directly and indirectly, make policy. They do so through their mandate of judicial review and their authority to interpret the law. Courts headed by conservative judicial officers practice judicial restraint in policymaking and they argue that it is undemocratic for courts to make policy. Their argument is that people’s representatives in the legislature are the only ones with the mandate of policymaking. Courts with liberal justices practice judicial activism and make policy arguing that courts should be involved in writing the wrongs which are made by other arms of government. The role of courts in policymaking is limited by the constitution as their conduct should be within some legal and constitutional confines. Therefore, they should be allowed some space to make policies so that the constitution can be relevant. This can be done within the confines of the constitution without interfering with the democratic process.
References
Barnes, J. (2007). Bringing the courts back in: Interbranch perspectives on the role of courts in American politics and policymaking. Annu. Rev. Polit. Sci. , 10 , 25-43.
Barnes, J. (2017). Courts and Social Policy. Available at SSRN 3054653 .
Feeley, M. M., & Rubin, E. L. (2000). Judicial policy making and the modern state: How the courts reformed America's prisons . Cambridge University Press.
Grossmann, M., & Swedlow, B. (2015). Judicial contributions to US national policy change since 1945. Journal of Law and Courts , 3 (1), 1-35.
Tarr, G. A. (2013). Judicial process and judicial policymaking . Cengage Learning.
