The Rise of Juridification: Causes and Consequences

In Law's Allure, Silverstein argues that the political and policymaking processes in the United States have been subject to “juridification.” Silverstein describes juridification as “relying on legal processes and legal arguments, using legal language, substituting or replacing ordinary politics with judicial decisions and formality” (p. 5). Later in the book, he describes “juridification of policy and politics alike” as “the reliance on judicial rulings; the desire to formalize, proceduralize, rigidify, and legalize; the substituting of legal rules and rulings for the political arts of negotiation, bargaining, elections and persuasion” (p. 270). Although the definition might seem to lack a certain precision at times, Silverstein employs it with consistency to refer to the increased tendency over time for political actors and policymakers to use legal conventions, language, procedures, and institutions in the creation and resolution of policy disputes. As such, Silverstein helps to show how “law is different” but not separate from politics (pp. 63, 283).

Silverstein's rather ambitious project seeks to examine both the causes and consequences of juridification. He theorizes that there are two general causes: first, political actors and activists might prefer a judicial venue to other venues, or second, they face such profound barriers in other venues that they view the judicial avenue as the only realistic option (pp. 16–17). There are four reasons why juridification might be the preferred course: first, it is viewed as the most efficacious option for the particular policy goals at issue (pp. 21–23); second, it may serve to unify and mobilize fragmented political forces such as interest groups and activists (pp. 23–25); third, it may be seen as normatively superior because “law has a luster, a power and appeal, and allure” (pp. 25–28); and fourth, it allows elected officials to avoid blame for a potentially unpopular decision regarding a controversial and/or ambiguous policy issue (pp. 28–29). Even if courts are not the preferred institution, other venues may not be realistic options. For example, civil rights leaders could not successfully fight segregation and discrimination in the southern states in the 1950s and early 1960s because of the political opposition in those states, and because procedural rules in the US Senate allowed a minority of senators from those southern states to block national legislation.Footnote ²

Silverstein also traces what he calls “patterns and processes” of juridification. Once courts are brought into the fray, they can avoid acting and remain silent, allow or authorize the government to act, command the government to act, or block the government from acting (p. 30). If the court remains silent on the issue, it leaves future choices about how to proceed in resolving the issue entirely up to the other branches. However, if the court acts in one of the other three capacities, the future of the policy will depend on whether the other branches allow the process to end or if they attempt to respond to the court. When the other branches pursue a policy after the court has blocked, allowed, or commanded, they work together with the court to make policy. If the court and the elected branches are aligned, or “largely on the same page, at least headed in the right direction,” a “constructive pattern” of policy development is likely to emerge (p. 38). In these instances, policy should develop in a coherent fashion, with each institution building on the actions of the others. However, when the court is not aligned with the other branches, a “deconstructive pattern” is likely to occur, in which the decisions of different government institutions are at odds with the others. The institutions may frustrate the others' efforts to achieve policy objectives and make policymaking less predictable and less unified, creating a number of problems for stakeholders and policymakers on all sides of the issue.

Silverstein argues that juridification was seeded in the post–New Deal Supreme Court, and established strong roots in the 1950s and '60s, especially with the landmark cases of Brown v. Board of Education (1954), Baker v. Carr (1962), and Gideon v. Wainwright (1963) and other related cases. With these as a starting point, the remainder of the book presents meticulously detailed case studies in which Silverstein analyzes how the process of juridification has played out over time. Many of the cases are familiar stories for students of the US Supreme Court and constitutional history, but Silverstein deftly examines each with interesting and detailed description and persuasive analysis to show the various functions and consequences of juridification.

For instance, in comparing the political legacies and policy consequences of Brown and Roe v. Wade (1973), Silverstein notes that “[b]oth involved constitutional interpretation and both spawned decades of litigation and further court rulings” (p. 126). And yet, each produced very different types of outcomes. Silverstein argues that in Brown, the Court handed down a narrow decision that left room for the legislature to act, and that by helping to break through political and procedural obstructions, the Court ended up working together with Congress (p. 121). As a result, “Brown served as an important legislative precedent as well as judicial precedent,” leading to the Civil Rights Act of 1964 and the Voting Rights Act of 1965; Brown became “embedded” in American politics because “together [the Court and Congress] ultimately changed behavior, public perception and public acceptance” of desegregation and civil rights (pp. 126–27).Footnote ³ On the other hand, Roe was a sweeping decision that blocked states from acting on the issue of abortion and, after decades, is hardly embedded in any meaningful sense. According to Silverstein, “Rather than using the Court as a sword with which to fight for legislative reform, many abortion rights advocates embraced Roe as a judicial shield that would assure women a right to abortion” (p. 127).

Silverstein is not necessarily making a judgment on juridification but rather providing a framework “to help politicians and policy entrepreneurs, lawyers, judges and those who study them begin to think about the perils and promises of law's allure in a more systematic way” (p. 285). Although Silverstein makes a persuasive argument, one cannot help but ask whether he has fit the case studies to the theory and whether he is trying to explain too much. Indeed, the book paints with a fairly broad brush, leaving it to future research to flesh out many of the details. Moreover, the analysis in the book focuses largely on Supreme Court decisions and their impact on national politics and federal legislation. Although they are not framed in terms of Silverstein's work, the recent books by Epp and Miller can be understood as helping to fill in some of the tiles of the incomplete mosaic Silverstein describes from afar.

Legalized Accountability: The Courts and Agencies Work Together

In Making Rights Real, Epp, like Silverstein, examines how legal processes, language, and formalities influence the policy process. However, whereas Silverstein focuses on how activists and policymakers pursue policy through courts and legal institutions mostly at a macro level, Epp's focus is on how law and judicial precedent influence administration and implementation in administrative agencies at a more micro level. Epp argues that a partial consequence of the trend toward using courts to secure individual and minority rights during and after the 1950s and '60s (the so-called rights revolution), which happens to coincide nicely with Silverstein's initial period of juridification and the legal mobilization that accompanied it, was that activists and reform-minded managers in administrative agencies responded by reforming administrative practices and policies. These reforms led to a system of “legalized accountability” in public administration. Epp explains that legalized accountability

Epp provides a theoretical model and several case studies to show how legal accountability emerged in government agencies. His systematic empirical analysis of policy reforms and practices involving policing (specifically, the use of force), sexual harassment, and playground safety in local governments helps support his claim that legalized accountability emerged in the 1980s and eventually became the prevalent model for protecting rights in the implementation of public policy. Relying on the precedent and the language of the rights revolution forged in the courts during the initial period of juridification, activists targeted and made claims of liability against agencies with systematic patterns of rights violations. Through lawsuits and the threat of litigation, these legal activists showed, for example, that cases of police brutality were not outliers conducted by a few bad apples, but rather were often the result of systematic practices and structural problems in the agencies.

Interestingly, it was not the actual money damages from legal liability that was the primary motivator for reform, according to Epp's interview and survey data. Rather, it was the publicity and media exposure, and the ensuing (or potential ensuing) embarrassment and damage to institutional legitimacy that convinced public managers to implement creative reforms to agency policies, procedures, and practices. The reforms were designed to insulate the agencies from—and hence avoid—future legal liability, thus preserving the legitimacy and reputation of the agency.

The new policies thus took on legalistic forms and procedures. Agencies also implemented training programs and modes of communicating the policies to employees, who became accountable to their supervisors, who oversaw the implantation of and conformity with those policies. Eventually, these legalistic forms became norms within agencies and influenced the culture within agencies. And of course, they provided grassroots activist watchdogs with a basis for evaluating whether agency reforms became substantive and meaningful, and with grounds for pressing claims and pursuing complaints within the agency itself.

In the case of the use of force by police officers—the most extensive and persuasive case study in Making Rights Real—Epp demonstrates how this process plays out in the real world. Although police agencies in the United States had undergone reforms during the progressive era, the emphasis had been on adopting the European model of “professionalized policing by bureaucratically shielding departments from partisan control” (p. 35). Police professionals focused on effective administration and thought that any abuses that occurred “were perpetrated by isolated officers who deviated from professional standards” who could be rooted out and disciplined internally (p. 35). Epp's data, including among other things a systematic analysis of the monthly professional magazine Police Chief, show that in the 1960s, policing leaders began to express concern about potential lawsuits arising from police shootings and addressing ways to avoid lawsuits. In the 1970s, “American policing experienced an epiphany,” (p. 94), and “[s]ince 1982, this twin theme—liability threats are everywhere, and as a consequence, departments should adopt systems of legalized accountability—has been among Police Chief's primary messages to the profession” (p. 99). This message was heard, and police agencies have adopted new standards and rules for the use of force, establishing training programs for officers as well as internal oversight with “zero tolerance” policies for excessive use of force (pp. 101–9). Epp argues that the norms for public expectations and internal practices changed, resulting in a significant decrease in abuse.

In many ways, this process fits nicely into Silverstein's framework to show how in the wake of a period of juridification, courts can work together with the other branches of government in a constructive process of policy formulation and implementation in which judicial decisions serve as precedent for actors both inside and outside the judiciary. Like Silverstein, Epp's claims are primarily empirical, and he is somewhat hesitant to take a position on the value of legalized accountability. Yet, also like Silverstein, he recognizes there are normative implications to his study. However, Epp seems to want to do more than simply provide a framework to help guide practitioners and relevant others in thinking about the relationship between law and policy. While acknowledging potential weaknesses of the legalized accountability model, Epp is guardedly optimistic about the phenomenon he observes in his study. As one city administrator told him, “The courts have done a far better job than politics of improving our policies” (p. 11). He concludes that “law-based reform has worked where virtually nothing else has” (p. 226), and that at least in the short run, “legalized accountability … is likely to seem eminently more sensible than the alternatives” (p. 231). Of course, “working together” is not the only pattern of juridification or function of law and courts identified by Silverstein, as my discussion of Miller's Direct Democracy and the Courts illustrates further in the next section.

Direct Democracy, Courts, and the “Blockage Function”

In Direct Democracy and the Courts, Miller turns our attention to yet another way in which courts and law have been used to influence politics and policy. Whereas Silverstein is largely interested in how courts overcome obstructive government institutions or work with other institutions in the formation and development of policy, and Epp examines how legal liability resulted in a legalistic form of policy implementation in public agencies, Miller examines the role of law and courts when policy comes from direct democracy in the form of voter-passed referenda and ballot initiatives. He does not purport to provide a new theoretical model, but rather takes more of an inductive approach to sketch out the coevolution and relationship between the history of the ballot initiative in the United States, and the increased role of courts in the policy process. In certain respects, Miller's work helps illustrate a unique way in which the courts serve Silverstein's “blockage function.”

Because Miller's focus is on policy produced by voters through the initiative and referendum processes, the first part of Direct Democracy and the Courts provides a descriptive account of the history of those processes, or what he refers to as “direct democracy” in the United States. After noting that “James Madison and the other framers of the federal Constitution flatly rejected direct democracy” (p. 19), Miller traces a growing dissatisfaction with the Madisonian model of indirect democracy among the populists of the late nineteenth century and the progressives in the first part of the twentieth century. The author describes the various types of ballot initiatives and referenda adopted by states in the ensuing years, the variation in subject matter, trends in the frequency of the use of the initiative process, and success rates throughout US history. The beginning of the twentieth century saw Oregon voters adopt twenty-five initiatives between 1904 and 1910 (p. 41). Direct democracy became more popular, spreading to other states, especially in the West. In the 1910s, states passed a combined total 102 initiatives, and in the 1930s, states passed 100 initiatives according to Miller's data. The use of the initiative gradually diminished through the 1960s, during which only forty passed in all states, but resurged in the 1970s through the 2000s. States passed a total of 72 in the 1970s, 106 in the 1980s, 171 in the 1990s, and 153 between 2000–2008 (p. 42). According to Miller, a total of twenty-four states use various forms of the initiative process with varying frequencies, but “California, Oregon, Washington, Colorado and Arizona have emerged as the five strongest initiative states” (pp. 50–51). In some states, such as California, an “initiative industry” exists, in which initiatives are pushed by “repeat players and campaign professionals” (pp. 51–52). The most common (not quite a majority) subject of initiatives is political and governmental reform, but Miller's analysis shows that the subject of initiatives covers six additional policy issue areas.

Miller also provides an overview of case law involving court challenges to initiatives. Early challenges to the constitutionality of the initiative process at the beginning of the twentieth century failed at both state and federal levels, culminating in the US Supreme Court decision Pacific States Telephone and Telegraph Company v. Oregon (1912). In Pacific States, the Court applied its 1848 decision of Luther v. Borden to conclude that the existence and form of state governments was a political question left to Congress under the Guarantee Clause in Article IV of the US Constitution. According to Miller, “as a practical matter, Pacific States protected state and local initiative and referendum processes from legal challenge on federal constitutional grounds, an outcome widely interpreted to bestow constitutional legitimacy on the devices” (p. 34). While the constitutionality of the process was protected by Pacific States, the decision did not forbid legal challenges to specific initiatives on other grounds.

Miller analyzes data compiled on initiative litigation from the beginning of the twentieth century through 2008, with some focus on the five strongest initiative states he identified earlier in the book. Although there have been judicial challenges throughout the twentieth century, there was a sharp increase in the number of challenges beginning in the 1970s. The results show that of the fifty-five initiatives from the five strongest initiative states that were challenged in federal courts from 1912 through 2008, 55 percent of initiatives challenged in federal courts were invalidated for violating the federal constitution—the most common grounds being the First Amendment, Equal Protection, Due Process, and the Supremacy Clause. Of the 144 initiatives challenged in the state courts in those same states from 1904 through 2008, 39 percent were invalidated—the most common grounds for which were violations of separation of powers principles and various procedural problems with the particular initiatives, such as violations of the single-subject rule or problems with the ballot title.

Miller concludes by assessing the consequences of the increased role of the court in reviewing and invalidating ballot initiatives. First, Miller finds that court decisions that strike down ballot initiatives do thwart the will of the voters in a meaningful sense. This is an intriguing finding because it runs counter to much of the contemporary political science literature on judicial review that has focused on the ways in which judicial review serves the interests of elected political elites, especially at the national level; therefore, according to these scholars, judicial review cannot properly be characterized as an antimajoritarian device that undoes the will of the voters.Footnote ⁴ And yet, Miller finds that the exercise of judicial review in those ballot initiative cases can be accurately and meaningfully characterized as countermajoritarian when it invalidates policies adopted directly by a majority of voters in the form of ballot initiatives. Next, Miller identifies two potential problems with the role of courts in direct democracy. First, this phenomenon may contribute to political polarization, especially between voters and the courts. Second, courts could become further politicized by being drawn into the ballot initiative process and being pitted directly against the will of the voters. The author does not explore these potential problems in much depth, suggesting instead some fairly minor potential remedies if they become reality (pp. 222–23). Finally, Miller suggests that the increased exercise of judicial review has on balance been a positive one because it helps us remain faithful to the “Madisonian system” by controlling the “potential excesses” of direct democracy that may arise in the wake of increased use of ballot initiatives; as such, the judiciary has played an important role in achieving a new constitutional equilibrium (p. 224).

Studying the Relationship among Law, Politics, and Democracy in the Twenty-first Century

All three of the authors reviewed here shed important insights into the relationships between and among law, politics, and democracy. While each project is empirical, the authors all acknowledge that their findings have important normative implications. And although these authors approach the topic in different ways, taken together, they suggest a common path our scholarship might be taking as we try to gain a better understanding of the interdependence of legal and political institutions in modern democracy.

Silverstein's work is perhaps the most ambitious project, seeking to develop something like a grand theory of the role of law and courts in US democratic politics in the modern era. Indeed, probably the most important criticism that can be levied against his effort is that the book claims to explain too much—the subtitle of the book, How Law Shapes, Constrains, Saves and Kills Politics, does seem to suggest that law can explain virtually any political outcome. At times, it does seem as if juridification means that politics is mostly, if not entirely, dependent on courts. The only time politics occurs absent judicial influence is when the courts choose to remain silent on an issue. Although his case studies are persuasive at one level, it is not at all clear how pervasively law and courts play any or all of the functions Silverstein attributes to them, or similarly, which of the consequences he identifies are the most likely to occur as a result of juridification. However, he does the field of law and courts a major service by providing a framework to help guide our research agendas by showing how law and judicial decisions can at once be conceptualized as something different from politics, but at the same time an inherent part of politics and policymaking.

In fact, the Epp and Miller studies help fill in some of the gaps and illustrate some of the directions law and courts research might take as we plot a course through the second decade of the twenty-first century. Epp's work is rigorous and draws our attention to the ways in which nonjudicial institutions may choose to adopt legalistic means of implementing policy. He shows why it is important to broaden our research agendas to extend beyond the impact of particular court decisions on substantive policy outcomes. We see here law being incorporated into the administrative and implementation processes in order to avoid litigation, maintain agency independence and control, and ultimately protect individual rights. Epp, like Silverstein, helps us understand how law is different from, but also a part of, the political and policy processes. When adopting a model of legalized accountability, agencies are in a sense working together with the courts, trying to adopt procedures that will avoid the need for litigation, but they are not at all agents of the courts any more than courts are agents of political institutions. It was not judicial decisions alone that led to policy changes in these agencies, but rather the interaction of juridification, political activists and legal mobilization, and reform-minded actors within the agencies.

But law is not simply used by agencies as a means to deliver policy in ways that help respect individual rights. Miller's work shows yet another way that law is different—it can be a blunt instrument used to kill politics. But the effects of the blunt instrument are not necessarily antidemocratic, as it might be used to preserve republican institutions, processes, and ideals. In any event, Miller describes a scenario in which voters and courts have engaged a dynamic process over time.

The research agenda for the field of law and courts is a healthy—and interesting—one. Increasingly, scholars in our field are moving away from simplistic notions of judicial decisions that conflate law and politics—a view that is just as problematic as the old law and politics dichotomy. Our scholarship is examining the political dimensions of law and courts not simply in terms of the influence of ideology in judicial decision making or judicial outputs as being synonymous with other types of policy outputs. In his 1995 presidential address to the American Political Science Association, Charles O. Jones observed that law and lawmaking are an inherent part of the politics we study, and he called on political scientists and other researchers to understand the lawmaking process as an interinstitutional one, that by its very nature is continuous and iterative, or a “progression of alterations.”Footnote ⁵ Fifteen years later, the Silverstein, Epp, and Miller offerings reinforce Jones's observations and answer his call.