Policy Making

Deciding winners and losers, determining the allocation of society’s finite resources, courts make policy. Our five contributions in this section clearly illustrate this undeniable fact regardless of which court we examine. Pacelle and Pyle show that there is a dynamism to the law and the resulting development of policy. 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 review a state court’s policy-making role. 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 the presence of a more complicated pattern 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 state trial courts and their impact on policy making, 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. Looking abroad, Reid and Randazzo reveal how the interplay of state participation in intergovernmental organizations yields changes in legal norms and decisions. Focusing on issues of human rights, these scholars demonstrate how supreme courts follow the lead of their national governments, thereby resulting in greater diffusion of human rights norms. Finally, 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 prerogatives 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.

Pacelle Jr., Richard L.and Barry Pyle. “Issue Emergence and Evolution in the US Supreme Court.”

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

Smithey, Shannon Ishiyama, Robison, Kristenne M. “Trial Court Policy Making: The Case of Criminal Probation.”

Reid, Rebecca A., Kirk A. Randazzo. “High Courts and International Norms Institutionalization.”

Cardenas, Alan, Rebecca A. Reid. “Courts as Colonizers or Protectors? Indigenous Peoples before the Mexican Supreme Court.”


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