Policy Making

Courts make policy by deciding winners and losers and determining the allocation of society’s finite resources. Our contributions in this section clearly illustrate this undeniable fact regardless of which court we examine. Looking abroad, Sommer and Braverman provide us with critical insight into the now codified reforms of the Israeli Supreme Court. Their detailed analysis of the reforms proposed by the Netanyahu government in 2023 highlights how easily a Court can become a public policy issue as well as how fragile Court power can be when facing off against a strong executive in a parliamentary system. Throughout their piece, Braverman and Sommer provide comparison and context using the US system to help students understand the Israeli Court and the critical importance of these reforms to their system of government. Next, Cardenas and Reid break ground by examining how the Mexican Supreme Court responds to rights claims made by indigenous peoples. These cases place courts in a difficult position—pitting the claims of the Indigenous population against the prerogative of the state, of which the judiciary is part and parcel. These scholars find that the Mexican Supreme Court behaves differently depending on the type of right—positive or negative—at stake. Thus, these scholars open a whole host of questions regarding judiciaries and their policy-making role when dealing with this often overlooked yet important subset of the population.

Heading back to our shores, Pacelle and Pyle show that there is a dynamism to the law and the resulting development of policy in the United States. These scholars show us the pattern of policy evolution at the US Supreme Court—a pattern that goes well beyond the initial landmark case and often continues for decades, ebbing and flowing to build a strong body of precedent that is often credited to the initial case, such as Brown, Roe, or Mapp. Moving down the judicial ladder, Scheb and Sharma discuss the policy-making role of state courts. Using Tennessee death penalty cases as their data and diving into the controversial question of discrimination and the imposition of the death penalty, these scholars show a more complicated pattern is present than is ordinarily assumed. While prosecutors are more likely to seek a death sentence based on the race of the victim, the jury is not more likely to impose a capital sentence. This result holds up in the face of a number of statistical controls. Again, looking at trial courts and their impact on policy making at the level of state trial courts, Professors Smithey and Robinson look at the courtroom working group to suss out policy-making patterns with respect to probation. By approaching problems differently, trial courts make policy by virtue of an accumulation of their decisions, and these policies have significant community impacts and implications.

“A Proposed Constitutional Overhaul and the Question of Judicial Independence” by Udi Sommer and Roey Braverman

“Courts as Colonizers or Protectors?” by Alan Cardenas and Rebecca A. Reid

“Issue Emergence and Evolution in the U.S. Supreme Court” by Richard L. Pacelle Jr. and Barry W. Pyle

“Race and the Death Penalty in Tennessee, 1977-2016” by John M. Scheb II and Hemant K. Sharma

“Trial Court Policy Making” by Shannon Ishiyama Smithey and Kristenne M. Robison