ABSTRACT
The debate about judicial policy making, especially when it occurs during an election campaign, or in the context of a Supreme Court nomination, often features pointed critiques of judicial activism and ringing endorsements of judicial restraint. Conflicting views about the wisdom of "majority rule" lie at the heart of the debate about judicial activism. Supporters of judicial activism reject both justifications for judicial restraint. Courts' constitutional role makes judicial policy making legitimate; unclear statutory and constitutional language and legislators' tendency to dodge divisive social problems make it necessary. Even if courts should make policy in some circumstances, and can do so, the truest measure of the value of judicial policy making is its impact on American society. Thus, neither the dynamic court model nor the constrained court model accurately captures the impact of judicial policy making on social change. The dynamic court model overestimates the impact of judicial policy making, and the constrained court model underestimates it.
