How do courts affect social policy? Answering this question is deceptively complex. Part of the challenge stems from the sheer scope of contemporary judicial policymaking, particularly in the United States, where litigation reaches into nearly every nook and cranny of the American welfare state and casts a shadow on policy issues ranging from marriage equality to healthcare reform. Another obstacle is that scholars remain deeply divided on fundamental questions about the nature of judicial decisions and how their policy effects should be studied. These disagreements, in turn, have engendered three very different approaches to studying the role of courts in social policy that often talk past each other. The dominant approach views judicial decisions as prescriptive rules—legal commands from the bench—and asks to what extent do judicial decisions change policy? This view implies that judicial decisions are “treatments” whose efficacy should be tested by measuring shifts in policy outcomes from the pre- to post-treatment period or across treatment and control groups. An alternative tradition envisages judicial decisions as a potential resource, which can be used by activists as leverage in building movements and pursuing agendas in multiple forums. Here, the core question is not whether court decisions produce abrupt policy shifts, but how activists use them to challenge the status quo, mobilize interests, and generate pressure for policy change. A third approach sees legal precedent as a constitutive framework that shapes and constrains policymaking and its politics over time. The test for whether law matters under this approach centers on the degree to which judicial decisions influence the developmental trajectories of policy and politics, which includes consideration of paths not taken in the policymaking process.
That is not to say that the literature is wholly discordant. Despite their significant conceptual differences, these approaches tend to converge on the general idea that judicial policymaking shares many attributes with other policymaking processes: the implementation of judicial decisions, like statues and regulations, is contested and subject to capture by sophisticated interests; litigation, like lobbying, is a form of mobilization that seeks to translate policy grievances into effective political demands; judicial precedents, like other policies, generate policy feedbacks. Identifying similarities among judicial policymaking and its counterparts is a signature achievement in the study of courts and social policy, which has largely dispelled the “myth of rights” and simplistic notions that the law is somehow removed from politics. Yet it arguably has an unintended effect. Normalizing judicial policymaking—making it seem like other types of policymaking—threatens to render it less interesting as a distinct topic for research. This article suggests the time has come for all of the various research traditions in the field to return to foundational questions about what makes judicial policymaking distinctive and systematically study how these particular tilts and tendencies influence the continuing colloquy that drives the policymaking process.
Helma G. E. de Vries-Jordan
Marriage equality movements have been successful in achieving policy change in an increasing number of states. Hence, a growing body of scholarship has explored institutional and cultural factors that influence activists’ tactics and messaging and, in turn, contribute to marriage equality policy diffusion. Democracies with parliamentary, presidential, and semi-presidential systems, federal and unitary states with varying levels of centralization, and the presence or absence of constitutional anti-discrimination protections provide social movements with divergent political opportunity structures, contributing to dynamics in their tactical choices. In addition, the type of electoral system and party system, the presence of political parties that are movement allies, the use of conscience votes, the level of party discipline, the presence of out LGBT elected officials and straight political allies, and the degree of political will to enact policy change also impact activists’ strategic calculations. Finally, the use of personalized narratives in advocates’ messaging, the framing of marriage equality and LGBT rights as human rights norms, the adoption of family values frames to coopt opponents’ messaging, and the use of homonationalist versus homophobic discourses to justify policymaking decisions regarding same-sex marriage are explored. This article provides a comprehensive review of state-of-the-art research concerning all of the states that have legalized same-sex marriage as well as a detailed analysis of the mechanisms used to achieve policy change. After examining how different explanatory factors perform in accounting for the dynamics in marriage equality activism and policy convergence across a broad range of national contexts, new directions for future scholarship are suggested.