ECONOMY

mathew d. m C cubbins & daniel b. rodriguez 283
The foundation of these conclusions stem from what we call the courts’ Hamiltonian
dilemma—Alexander Hamilton’s observation in Federalist 78 that courts, by
themselves, cannot implement their own orders or opinions. Although it is difficult
for Congress and the president to overturn a court decision with which they disagree, 9
it is much more difficult to get political officials to implement judicial decisions
that they oppose. In the PPT framework, judicial decisions are merely one form of
policy. And, as with other policies requiring enforcement and implementation, for
judicial orders and opinions to have an effect, they must obtain compliance from
those to whom the orders and opinions are directed, including lower courts, executive
agencies, commissions, state and local governments, and their agencies, corporations,
and individuals. In this way, the limits on judicial independence are the direct results
of the relative impoverishment of judicial power and of the legislature and executive’s
ability to take advantage of the judiciary’s relative weakness. 10
Several conclusions follow from this insight. To begin with, the Supreme Court,
due to imperfect information and limited resources for hearing appeals, cannot
enforce perfect adherence to its judicial doctrines by its agents. By this view, doctrine
is not what the court believes is the best policy to pursue for its own sake, but rather
is an instrument to gain compliance from various agents. In areas where potential
case numbers are huge relative to the court’s ability to review cases, the court must set
a lax standard—as in Brown’s ambiguous message to school districts to desegregate
with “all deliberate speed.” In areas where the cases are relatively few and the policies
are ones that the judiciary values highly, such as abortion, the court can set a tight
standard. In this sense, doctrine is, at least in part, the strategic creation by the higher
courts in their efforts to ensure a degree of judicial compliance.
A consequence of the courts’ Hamiltonian dilemma is that political actors can take
advantage of this situation by exacerbating the court’s scarcity, influencing judicial
doctrines by expanding the number and reach of executive agencies, commissions,
lower courts, and so on. By forcing the court to decide more cases, or by restricting
its ability to review cases, political officials indirectly affect doctrine by forcing the
Supreme Court to widen or narrow the range of acceptable decisions. In this way,
elected officials create and use structure and process to influence judicial policy in
much the same way that they use administrative structure and process to influence
agency policy-making (McNollgast 1987, 1989).
McNollgast (1995) demonstrated how a united set of political branches opposing
a Supreme Court could force it to alter its doctrine in their favor by expanding the
lower judiciary and forcing the court to face many more potentially non-complying
lower courts. Lower court expansion exacerbates the Supreme Court’s compliance
problem, forcing it to expand the range of acceptable decisions—that is, in the
direction favored by political officials. Political officials, then, indirectly affect the
⁹ On congressional overturns of court decisions, see Eskridge 1991 and Spiller and Tiller 1996.
¹⁰ As an illustration of the many enforcement difficulties that the judiciary faces, note how overseeing
compliance with school desegregation decrees, especially in the face of hostile school boards, is a lifetime
ambition for a court, one which necessarily precludes addressing other matters and one for which
compliance notoriously fades into the shadows once the spotlight no longer shines on the issue.