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10 chapter two
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2 Using Courts to Dismantle Existing Policies
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4 As with efforts to use the courts as veto points, lawsuits seeking to disrupt
5 entrenched policy status quos have regularly been filed by advocates on
6 the right as well as the left. Such legal challenges sometimes target policies
7 that had been created by judges, but I focus here primarily on challenges
8 to existing policies that had been enacted by electorally accountable legis-
9 lators or executives. These efforts sometimes emerge from the top down,
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10 with calculated decisions by organized rights advocates that evolving
11 patterns of legal doctrine and public opinion have rendered an existing
12 policy newly vulnerable to legal challenge. And they sometimes emerge
13 from the bottom up, with ordinary persons finding lawyers willing to press
14 their case that existing policies violate their legal rights. The suits in this
15 latter category— which I have characterized as wildcat litigation— often
16 appear to be long shots when they are filed, but if and when they make
17 some headway, the organized rights advocates generally climb aboard and
18 seek to take the helm. Again, these dynamics regularly play out on the
19 right as well as the left.
20 That leaves just three policies whose judicial invalidation may well
21 have thwarted the national democratic will, but even here, the judges’
22 word was hardly the final story. State and federal courts have invalidated
23 two statutory bans on abortion after twenty weeks’ gestation, but litiga-
24 tion on the issue remains pending, and state and federal legislators con-
25 tinue their efforts to enact similar laws. The Supreme Court invalidated
26 the GFSZA and a provision of the Brady Bill, but as I have already noted,
27 the practical scope of these holdings was limited.
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29 * * *
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31 The narrow reach of most exercises of judicial review— together with the
32 fact that the courts’ broader assertions of power are sometimes success-
33 fully resisted— has led some scholars to conclude that courts are a rela-
34 tively insignificant feature of the American policy and political landscape.
35 That conclusion is unsupported by the evidence, in my view, and I chal-
36 lenge it in chapter 5. But the burden of this chapter has been simply to
37 show that exercises of judicial review often have broad public support.
38 One reason for this broad support is that, across all four issues that I have
39 examined, judges have regularly refused to give rights advocates everything

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