Rethinking Supreme Court power in the study of judicial impact

Abstract

The extent to which courts meaningfully affect policy change has been the subject of heated debate among socio-legal and other public law scholars. I argue here that one key source of tension in the literature has been the lack of any clear theory of judicial power, especially in compliance and other impact studies. Indeed, many studies have conflated “impact” and power—a move that serves to confuse rather than clarify the topic. In this paper, I outline a theory of judicial power for the study of judicial impact. I then demonstrate the utility of this theory using two historical case studies. Ultimately, I argue that this theory allows for clearer and better-grounded inferences about the roles played by courts in policy and politics.