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6 J. Pub. L. 279 (1957)
Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker

handle is hein.journals/emlj6 and id is 283 raw text is: Role of the Supreme Court Symposium, No. 1

Robert A. DahlF-
legal institution is to underestimate its significance in the American political
system. For it is also a political institution, an institution, that is to say, for
arriving at decisions on controversial questions of national policy. As a
political institution, the Court is highly unusual, not least because Americans
are not quite willing to accept the fact that it is a political institution and
not quite capable of denying it; so that frequently we take both positions at
once. This is confusing to foreigners, amusing to logicians, and rewarding
to ordinary Americans who thus manage to retain the best of both worlds.
A policy decision might be defined as an effective choice among alterna-
tives about which there is, at least initially, some uncertainty. This uncer-
tainty may arise because of inadequate information as to (a) the alternatives
that are thought to be open; (b) the consequences that will probably
ensue from choosing a given alternative; (c) the level of probability that
these consequences will actually ensue; and (d) the relative value of the
different alternatives, that is, an ordering of the alternatives from most pref-
erable to least preferable, given the expected consequences and the expected
probability of the consequences actually occurring. An effective choice is a
selection of the most preferable alternative accompanied by measures to
insure that the alternative selected will be acted upon.
No one, I imagine, will quarrel with the proposition that the Supreme
Court, or indeed any court, must make and does make policy decisions in
this sense. But such a proposition is not really useful to the question before
us. What is critical is the extent to which a court can and does make policy
decisions by going outside established legal criteria found in precedent,
* Eugene Meyer Professor of Political Science, Yale University; author, A Preface to
Democratic Theory (1956) and other works.

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