Robert A. Dahl. Decision- making in a democracy: the Supreme Court as a national policy-maker.
To consider the Supreme Court of the United States strictly as a 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 alternatives about which there is, at least initially, some uncertainty. This uncertainty 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 preferable 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, statute, and constitution. Now in this respect the Supreme Court occupies a most peculiar position, for it is an essential characteristic of the institution that from time to time its members decide cases where legal criteria are not in any realistic sense adequate to the task. A distinguished associate justice of the present Court has recently described the business of the Supreme Court in these words:
It is essentially accurate to say that the Court's preoccupation today is with the application of rather fundamental aspirations and what Judge Learned Hand calls "moods," embodied in provisions like the due process clauses, which were designed not to be precise and positive directions for rules of action. The judicial process in applying them involves a judgment . . . . that is, on the views of the direct representatives of the people in meeting the needs of society, on the views of Presidents and Governors, and by the construction of the will of legislatures the Court breathes life, feeble or strong, into the inert pages of the Constitution and the statute books.1
Very often, then, the cases before the Court involve alternatives about which there is severe disagreement in the society, as in the case of segregation or economic regulation; that is, the setting of the case is "political." Moreover, they are usually cases where competent students of constitutional law, including the learned justices of the Supreme Court themselves, disagree; where the words of the Constitution are general, vague, ambiguous, or not clearly applicable; where precedent may be found on both sides; and where experts differ in predicting the consequences of the various alternatives or the degree of probability that the possible consequences will actually ensue. Typically, in other words, although there may be considerable agreement as to the alternatives thought to be open [(a)], there is very serious disagreement as to questions of fact bearing on consequences and probabilities [(b) and (c)], and as to