Courts have fewer remedial tools and options than other institutions.

Evidence

Flexibility of Response The more flexibility policymakers have in devising solutions to problems, the more likely they are to solve them. According to Horowitz, courts have far fewer options than do other policymakers. Because courts must decide cases on the basis of law, they cannot impose a compromise solution on disputants, no matter how desirable such a compromise may be. Further, if people have a legal right, they have it regardless of cost, and thus cost—benefit analysis—the prime approach to contemporary policymaking—plays little role in judicial policymaking. Finally, courts have fewer means of remedying illegal situations than do other governmental institutions. They can forbid, permit, or require actions, but they can neither tax nor spend (although their orders may require expenditures by other branches). They can neither create new agencies to administer their directives nor appoint officials to oversee their implementation. — G. Alan Tarr, Judicial Process and Judicial…, 2871

Categorization

• DEFINE: Defines courts’ remedial repertoire as forbid/permit/require, contrasted with legislative tools.
• DEEPTHINKING: The structural mismatch between declaring rights and implementing them is a deep, recurring problem in constitutional remedies (e.g. desegregation, prison reform).