Democracy by Decree

Democracy by Decree: What Happens When Courts Run Government

Ross Sandler
David Schoenbrod
Copyright Date: 2003
Published by: Yale University Press
Pages: 286
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  • Book Info
    Democracy by Decree
    Book Description:

    Schools, welfare agencies, and a wide variety of other state and local institutions of vital importance to citizens are actually controlled by attorneys and judges rather than governors and mayors. In this valuable book, Ross Sandler and David Schoenbrod explain how this has come to pass, why it has resulted in service to the public that is worse, not better, and what can be done to restore control of these programs to democratically elected-and accountable-officials.Sandler and Schoenbrod tell how the courts, with the best intentions and often with the approval of elected officials, came to control ordinary policy making through court decrees. These court regimes, they assert, impose rigid and often ancient detailed plans that can founder on reality. Newly elected officials, who may wish to alter the plans in response to the changing wishes of voters, cannot do so unless attorneys, court-appointed functionaries, and lower-echelon officials agree. The result is neither judicial government nor good government, say Sandler and Schoenbrod, and they offer practical reforms that would set governments free from this judicial stranglehold, allow courts to do their legitimate job of protecting rights, and strengthen democracy.

    eISBN: 978-0-300-12913-7
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-v)
  3. Preface
    (pp. vi-viii)
  4. Introduction: The Legal Hook
    (pp. 1-12)

    Carol Sherman, a young legal aid attorney practicing before New York City’s family court in 1972, could do nothing to help her twelveyear-old client Shirley Wilder.¹ Shirley urgently needed to escape her abusive relatives. Her mother had died when she was four, and her grandmother, who took her in, died when she was eleven. Shirley had most recently been living with her father, whose common-law wife beat and brutalized her. Eleven times Sherman had asked the family court to place Shirley with one of the private foster care homes under contract with New York City. These private homes were managed...

  5. CHAPTER 1 How Courts Came to Govern
    (pp. 13-34)

    At 7:53 A.M. on December 7, 1941, Japanese bombers struck U.S. naval bases on Oahu, Hawaii, killing 2,403 U.S. military personnel and citizens. Not included in the official casualty count but nonetheless a victim of the attack was an evil fellow named Jim Crow.

    World War II put soldiers of diverse skin colors in motion around the country. Northern whites witnessed segregation in the South, and southern blacks experienced the freer, but still deeply flawed, ways of the North. The blood they shed overseas was all the same color. The common enemy, Adolf Hitler, exemplified the evil in the claims...

  6. CHAPTER 2 How Congress Creates Rights: A Case Study
    (pp. 35-44)

    Courts justify their remedial decrees against state and local governments by pointing to violations of rights that Congress has created. Courts also parry charges that their decrees undercut democratic accountability by noting that Congress can get rid of the decrees by amending the statutory rights. This chapter shows how Congress created one right—the right to curb ramps—and later dealt with pleas from mayors to amend that right.

    Curb ramps appeared on the public radar screen during the 1960s in New York City.¹ With the city hemorrhaging manufacturing jobs, the government asked the remaining firms how it could keep...

  7. CHAPTER 3 How Courts Enforce Rights: A Case Study
    (pp. 45-97)

    We now turn attention to what happens when public interest lawyers go to court to enforce federal rights against state or local government. Compliance with the curb ramp mandate is too uncomplicated to give a good sense of how such court enforcement typically works, so we describe a case to enforce a more complicated mandate: the right to special education.

    Special education encompasses an extensive and expanding array of programs for coping with disabilities that range from stark, catastrophic physical and mental handicaps to the newer and vaguely defined categories of learning disabilities. In 1975, by overwhelming votes, Congress created...

  8. CHAPTER 4 Something New Is Going On In Court
    (pp. 98-112)

    It is not new that state and local officials find themselves as defendants in federal court. Federal judges from the earliest days of the United States entertained cases against state and local governments. The lawsuits, however, were mainly limited to whether the government had taken property, interfered with contracts, or violated some other property-based right. This limited judicial control of government met the needs of most citizens in an era of smaller government. Today, a greatly enlarged government provides education, welfare, housing, health care, and much more. When citizens first complained to courts about how government carried out these activities,...

  9. CHAPTER 5 How Court Management Works
    (pp. 113-138)

    For today’s young attorneys, the change in what courts do was already embedded in the law when they were schooled. For older attorneys, the change was gradual and happened in areas of the law remote from where most of them practiced. We, however, lived through the change.

    We went to law school when most of the curriculum was based on the old way of doing things but found ourselves practicing the new kind of law in the mid-1970s at the Natural Resources Defense Council (NRDC). The cases we had read in law school in the 1960s involved Smith suing Jones...

  10. CHAPTER 6 A Good Thing Gone Wrong
    (pp. 139-161)

    Many people are drawn to a system of rights that promises to make government more trustworthy and compassionate. For them, democracy by decree stands for vindication of rights, while government-as-usual stands for the violation of rights. By this reckoning, the necessity of democracy by decree is proved by the very existence of the decree which supposedly reflects a judicial finding that government-as-usual cannot be trusted.

    Government should honor rights, yet democracy by decree is a good thing gone wrong: It goes beyond the proper business of courts; it often renders government less capable of responding to the legitimate desires of...

  11. CHAPTER 7 Why the Wrong Thing Continues
    (pp. 162-182)

    Court enforcement against state and local governments would have remained a good thing and not gone wrong if district court judges had stuck to their proper role. That role, according to the Supreme Court, limits district courts to protecting the rights of injured plaintiffs and respecting the policy-making prerogatives of elected officials. These traditional restraints have had little purchase on many of the lower court judges when they are presented with actual cases. There, in the district courthouses, a strikingly different culture has evolved. It accepts an expansive responsibility for managing social change and is squarely at odds with the...

  12. CHAPTER 8 Road to Reform
    (pp. 183-192)

    Change is possible, as Congress showed in the Prison Litigation Reform Act of 1995.¹ Reacting to a popular outcry over expansive federal court orders controlling prisons, Congress announced new rules for decrees in prison condition cases. The new rules drew judges back within traditional judicial boundaries without removing their authority to remedy violations of federal law. Federal judges should have imposed similar limitations on themselves, but they did not do so. Congress acted in the prison cases not so much to support state and local officials, to whom Congress normally accords little respect, but rather to reprimand federal judges for...

  13. CHAPTER 9 New Principles
    (pp. 193-222)

    New principles for remedial decrees against state and local government must protect rights, keep the courthouse door open to those injured, and preserve local democracy. The goals may seem to be at odds, yet can be reconciled, as illustrated by the consent decree entered inMarisol A. v. Giuliani,the foster care litigation discussed in Chapter 6.¹ It left New York City in charge of its own program withoutanyjudicially imposed mandates on how it protects children as long as the city worked in ‘‘good faith’’ to improve its program. Plaintiffs agreed to a decree in which the major...

  14. Summary and Conclusion
    (pp. 223-228)

    We want judges to enforce rights because government must not be above the law. Yet unless the rights that courts respect also include the right to an accountable government, we will have a government of lawyers, not of law. Judges once respected that right by adhering to sensible, self-effacing principles of equity, but some judges have deviated from these traditions. The deviations have been incremental and subtle, but their cumulative consequence is the new, self-aggrandizing conception of judges as policy makers. Legislators, seizing the opportunity, invite judges to accept an even greater policy-making role in running state and local governments....

  15. Appendix Major Federal Statutes Regulating State and Local Governments
    (pp. 229-238)
  16. Notes
    (pp. 239-268)
  17. Acknowledgments
    (pp. 269-274)
  18. Index
    (pp. 275-280)