ABSTRACT
American courts make public policy, in some ways they have always played a role in policymaking. Where court participation in policymaking had once been confined to the rather narrow task of judicial review, courts now play a central role in defining the public policy agenda, identifying policy options, selecting among them, and overseeing their implementation. American public policy is different — and the quality of the American democratic process is different — because of the enlarged role that courts has played in our public life since World War II. America has always been a country with affection for the law and legalism. The new legalism of the postwar period has deeply altered the operations of the judicial process and the role of the courts. Congress and the bureaucracy have responded to the complexity of contemporary public life not only by expanding — according to some measures, much more rapidly than the courts — but also by steadily specializing.
