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One of the first things I learned in graduate school was that “Make a decision” is what policy analysis is all about. Gather the information, choose the evaluative criteria, and then decide and make a recommendation for possible implementation and afterwards evaluation of actual impacts, if any. Of course, we were taught it’s more complex and less mechanical than that, but still the objective was that really-existing deliberation led to decision and decision was followed by some kind of action (including delays or changes along the way).
One problem with this necessary complexification is the subsequent center-staging of the balancing test, that is: the weighing of the information in light of the economic, technical and political feasibility criteria for deciding the case at hand. Weighing the pros and cons, the push and pulls, and those hard-to-determine costs and benefits can end up feeling like the last resort when deciding, not just a very important step in a policy analysis. Having to balance is what you do when the evaluative criteria selected—efficiency, equity, feasibility, whatever—do not clearly lead to a recommendation. “Decide” here can feel like a last ditch effort.
That would be a banal observation were it not for the organizational/institutional efforts to normalize last ditch efforts. Courts are institutional niches in which to make real-time decisions, including those for which there are no clear precedent or existing legal norm (Duncan Kennedy 2024). Centralized control rooms in critical infrastructure turn out also to be an unique organization formation to balance competing system and local demand is under pressures of real-time (Roe and Schulman 2008, 2016). (In narrative analytical terms, such formats are meta-narratives that accommodate, at least in real time, conflicting/uncertain storylines.) These and other institutionanalized formations merit, I believe, as much attention as given to extraordinary powers granted to executives during emergencies.
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But so what, practically?
Before seeking to apply and modify such balancing mechanisms to other difficult policy/management arenas, it’s important to underscore the uniqueness of the respective formations. The answer isn’t to take hard problems and make their decisionmaking more court-like or control room-like, and one way to see that is when courts seek to become control rooms.
Consider recent developments with the US Supreme court. A growing concern has been its expanding “shadow docket.” “Emergency applications,” writes the New York Times‘s Adam Kushner,
require a snap decision about whether a policy can go ahead or must wait while lower judges argue over its legality. Critics call this the “shadow docket,” and the court usually rules on the urgent cases within weeks. Trump has won almost all 18 of these petitions. And unlike normal rulings, justices often don’t explain their rationale.
What is of interest here isn’t so much the shadow docket itself as it is how some Justices see what they are doing in deciding this way. Kushner elaborates:
None of these emergency decisions are final. In each, lawyers can fight the policy in lower courts. Perhaps the Supreme Court will eventually decide that the government can’t deport migrants from around the world to Sudan or unmake a federal agency without the say-so of Congress. But by then, critics of the shadow docket say, the work will already be done.
The justices themselves have battled over the propriety of emergency rulings. In a 2021 dissent, Elana Kagan rued a midnight ruling that effectively overturned Roe v. Wade in Texas. A month later, Samuel Alito returned fire in a speech:
“The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. … You can’t expect the E.M.T.s and the emergency rooms to do the same thing that a team of physicians and nurses will do when they are handling a matter when time is not of the essence in the same way.”
(accessed online at https://www.nytimes.com/2025/07/17/briefing/a-supreme-court-mystery.html
The problem is Alito’s analogy. Our early Federalists also worried about systemwide emergencies, and the accommodation they made was that, yes, presidential emergency powers may be needed in extraordinary times (think of Lincoln during the Civil War). But these would not serve as precedent for governance thereafter (Fatovic 2009). Or in the case of the quoted shadow docket, the final legal–repeat legal–determination comes later–repeat later–after lower court deliberations.
Yes, there are doctors in the emergency room, but the point here is that the justices are not emergency management teams in emergencies, and thereafter a team of physicians the rest of the time. Career physicians and career emergency staff are different professions requiring different skills and orientations, at least if you take the management literatures seriously. The court is not a control room, and this is best seen when it comes to emergencies and their respective balancing efforts.
Other sources
Fatovic, C. (2009). Outside the Law: Emergency and Executive Power. Baltimore:
Johns Hopkins University Press.
Kennedy, D. (2024). “The reception of Jacques Derrida in American Critical Legal Studies.” Accessed online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6009714
Roe, E. and P.R. Schulman (2008) High Reliability Management, Stanford CA: Stanford University Press.
—————————————– (2016). Reliability and Risk, Stanford CA: Stanford University Press.
WHEN COMPLEX IS AS SIMPLE AS IT GETS 