3 J.L. & Cts. 1 (2015)

handle is hein.journals/jlawct3 and id is 1 raw text is: 








Judicial Contributions to US

National Policy Change

since 1945


          MATT GROSSMANN, Michigan State University
          B R E N D O N S W E D L O W, Northern Illinois University




ABSTRACT
How often, at what times, and on what issues do courts directly make policy or indirectly influence policy
making by other branches of government? We assess the judicial contribution to policy change using
268 policy histories covering 14 issue areas of US domestic policy making from 1945 to 2004. Contrary to
the prominent view that courts are relatively inconsequential policy-making institutions, we find that
federal courts made or influenced nearly one in four significant federal policy changes. Courts directly
made almost as many significant policies as the executive branch and indirectly influenced about as many
significant policies in other branches as Congress. We also find that judicial policy making and influence
are concentrated in a few time periods and issue areas.




How often, at what times, and on what issues do US courts make policy or influence
policy making in other branches of government? Public law scholars generally see courts
as playing a limited and rarely independent role in policy making. Notably, these views are
based on analysis of court cases rather than comparing judicial policy making and
influence to that of the other two branches of government. We make the first direct
comparison.
    We examine the universe of significant domestic policy changes across all branches of
government in the post World War II period and assess how many involve the courts. In

    We would like to thank Mitch Pickerill, Rob Robinson, Ryan Black, Amy Steigerwalt, Steve
Wasby, Todd Collins, Art Ward, David Klein, Jon Goldberg-Hiller, David T. Johnson, Valerie J.
Martinez-Ebers, Chandra Hunter Swedlow, participants in the Midwest Political Science Association
meeting, and various anonymous reviewers for helpful comments on earlier iterations of this article;
and Erik Jonasson, Matt Phelan, Haogen Yao, Martina Egerer, Erica Weiss, Michael Thom, Heta
Mehta, Lindsay Vogelsberg, Chris Heffner, Anthony Clarke, and Fangxue Zheng for reading literature,
collecting data, and other assistance with this project. Contact the corresponding author, Brendon
Swedlow, at bswedlow@niu.edu.

Journal of Law and Courts (Spring 2015)  2015 by the Law and Courts Organized Section of the Anmerican Political Science
Association. All rights reserved. 2164-6570/2015/0301-0007$10.00

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