A review of Democracy by Decree: What Happens When Courts Run Government, by Ross Sandler and David Schoenbrod

It is easy for those of us who study the law but are not lawyers to snipe at judges, lawyers, and law professors for what they have done to the rule of law in the United States. In the legal professoriate in particular, many of the targets are tempting: so fat, so slow, and so outlandishly obvious in their zeal to have judges—and thus the lawyers who argue before them (including moonlighting law professors)—run the country. And then, every so often, along come professors like Ross Sandler and David Schoenbrod to spoil our fun. Sandler and Schoenbrod, who teach at New York Law School, have written one of the best books yet published on the problem of judicial usurpation of political power and what to do about it. 

They bring an unusual perspective to their analysis: both once worked as lawyers for the Natural Resources Defense Council, "one of the premier advocacy organizations" practicing at the leading edge of "public interest litigation." How they came to see the error of their ways they never fully explain, but they have written a superb exposé of the phenomenon known as "institutional reform litigation." The typical pattern is as follows. An aggrieved citizen seeks legal representation regarding a complaint about the inadequate provision of some social service by the government—usually a state or local government bureaucracy. The citizen may be a parent of a child who has special education needs or who attends a school situated near noisy subway tracks, or a wheelchair-bound city resident, or an inmate in a state penitentiary or local jail. The complaint alleges violations of rights that are real enough under current interpretations of the Constitution or the terms of some federal statute. But before local officials can catch their breath, the plaintiffs' attorneys have persuaded a federal district judge to certify the case as a class action suit, and we're off on a judicial marathon that may last decades, during which time local control of government's resources—and thus democratic accountability for the allocation of such resources—is seriously undermined.

The pivotal element in the process is the consent decree, by which local officials "settle" the case rather than go to trial on the merits of the complaint. Agreeing to a consent decree "allows defendant officials to switch from the role of lawbreaker to that of reformer." The terms of the decree, however, are largely dictated by the plaintiffs' attorneys, who exploit this impulse to avoid adjudication in order to leverage the most exacting and detailed promises of institutional reform they can possibly obtain from the defendants. The federal district judge essentially ratifies the consent decree as a contract between the parties, and settles into a steady routine of monitoring its fulfillment by the use of such traditional judicial tools as the contempt power. The judge may be torpid for long periods until awakened by the plaintiffs' attorneys, or he may take a consistently active interest in the case; but either way, control of the policies pursued by the state or local agency shifts from elected and appointed executive officials to what Sandler and Schoenbrod call the "controlling group," the "private club" of lawyers on both sides, with the preponderance of power on the plaintiffs' side. Along the way, intervening groups with an interest in the policy issues may occasionally get their noses under the tent (social workers, teachers' unions), or a "special master" may be appointed by an angry judge who is persuaded that local officials are being obstreperous. But the controlling group goes about its business behind closed doors, periodically expanding the decree or adding new and onerous details to the demands that are placed on local government. Frequently these expansions have nothing at all to do with the original allegations of rights violations, but are added to the initial arrangement as the latest and greatest "reform" idea for "improving" an agency's performance. Thus the authors' deliberately ironic title: it's all decree and no democracy.

Among the many unfortunate aspects of this pattern is the fact that such decrees are for the most part immune to being appealed to higher courts: since a consent decree substitutes for an actual adjudication by a trial court, there is nothing to appeal. This means that, as the arrangement persists over time, elected and appointed officials (governors, mayors, school boards, commissioners of various agencies) come and go with the normal regularities of the political cycle, each saddled with a "bargain" he or she had no part in forming, while the plaintiffs' attorneys are there forever, usually with the same federal district judge to keep enforcing the terms of the plaintiffs' exactions. Whether the lawyers can be said after a time truly to represent any clients' interests any longer is a fair question. They simply become the de facto unelected rulers of a city's schools or welfare agencies, or of a state's prisons or environmental bureaucracy, advancing their own notions of good government with all the power of the federal judiciary standing behind them.

* * *

How did such a pattern emerge in America's federal courthouses? Like many insanities of our political order, it began with a good idea that went bad. Following the second Brown v. Board of Education ruling in 1955, federal district judges met the South's "massive resistance" to school desegregation with an energetic use of their equitable powers, using remedial decrees to force local officials to redesign school district boundaries and take other steps that would overcome decades of racial segregation. By the 1970s, such government by judiciary had reached the point where dubious judicially created policies such as busing for racial balance had become common all over the nation (a tale well told in Lino A. Graglia's 1976 book, Disaster by Decree). But by then, crusading lawyers had seized upon similar techniques to attack the administration of other institutions as well, such as prisons and jails whose conditions were said to offend the "cruel and unusual punishment" clause of the 8th Amendment. Federal court supervision of schools and prisons in many states began to take on an aspect of immortality.

As if that weren't enough, in the 1970s, as Sandler and Schoenbrod report, "[w]hat the courts had done retail, Congress…began to do wholesale." A new category of "soft rights" came into being. These are not rights at all in the traditional sense, since their concrete realization cannot be achieved by the mere cessation of some violative behavior by local government officials and institutions. Instead, they are "aspirational goals" that come in the form of unfunded mandates that Congress places on states and localities: mandates for "clean air," or the provision of "appropriate education" for learning-disabled children, or the elimination of "architectural barriers" to the movement of handicapped persons using a city's streets or public buildings. In an appendix, the authors list roughly 65 federal statutes, each regulating state and local government in some way, that Congress has passed in just the past three decades. Some of these laws have become major levers in the litigation pattern they describe. And they work perfectly well as such levers even when a statute's terms are not "mandatory" unless a state accepts federal money to support certain local programs. Because it is almost unheard of for states to refuse the money, they accept the yoke that comes with it, and off to court we go.

* * *

The book is full of examples of litigation run amok, but Sandler and Schoenbrod were wise to choose one such story as emblematic. In their longest chapter, they tell the tale of José P. v. Ambach, a suit filed in federal district court in New York in 1979, on the basis of the 1975 Education for All Handicapped Children Act. The mother of a severely disabled 15-year-old boy simply wanted her son evaluated by the city board of education in order to have him placed in the most appropriate educational setting in the public schools. An unseemly delay in having José evaluated became the opening for a class-action lawsuit that is still on the docket of the district court a quarter-century later, with special education in New York City wholly under the control of an evolving consent decree for that entire time. For almost 23 of those years, the program was under the supervision of a single federal judge. Had he not died in 2002, the case would still belong to Judge Eugene Nickerson—and it has never gone to trial.

Early in the process, the issues expanded beyond screening and placement of disabled children to the whole gamut of special education policy. "Advocates" of all kinds were permitted to become parties, intervenors, or amici curiae with real leverage, with the result that "[a]ny educational policy however vaguely related to special education" came to be included in the evolving remedial decrees. Scores of meetings, millions in premium-priced fees for the plaintiffs' attorneys (at the city's expense), three successive special masters (also dunning the city), eight city chancellors of education, and hundreds of pages of decrees and orders later, it is doubtful that anyone can claim that special education in the city has been substantially improved, though costs have skyrocketed and a quarter of the city's education personnel work in the program. "The upshot," the authors say, "was a huge, gold-plated, dysfunctional cog in a rusty educational machine." Worse yet, "under the judicial regime, no governmental official or institution has taken responsibility for what happened."

Sandler and Schoenbrod still have the reformer's spirit, but, thank heavens, they have turned their attention to reforming judicial practices in order to restore democratic accountability to public policy. Taking their cue from the Prison Litigation Reform Act of 1995—prompted by a disastrous judicial intervention in the running of Philadelphia's jail—the authors propose a detailed set of "new principles" for federal litigation against state and local governments. These new principles really include many old but forgotten or abused principles of equity jurisprudence. A complete sketch of what they propose is not possible here. But the gist of the reforms is to limit judicial discretion, to curtail and to publicize the activities of the controlling group, and to revive the responsibility of elected officials at the local level. A judge should make detailed findings of fact regarding legally cognizable injuries, frame his decrees concretely with respect to the rights that need to be vindicated, trust as much as possible in the good faith of defendant officials, permit newly elected officials to seek the modification of decrees, open up the processes of negotiation to public scrutiny, relinquish control of cases to a new judge after eight years (and refer all contempt proceedings to other judges), fix an automatic termination date for judicial supervision, and plainly state the terms on which any earlier termination can take place. They persuasively argue that so long as such reforms do not occur, "we will have a government of lawyers, not of law."

The authors hope their reform ideas will be taken to heart by judges themselves, but they know that congressional action may be necessary. Among the remarkable virtues of this book is the way Sandler and Schoenbrod describe an outrage without using shrill rhetoric; they calmly seek a golden mean in which rights are taken seriously in courts of law, while public policy is made democratically. They also write wonderfully, with a plain-spoken elegance and clarity that make the book accessible to interested citizens with no legal training. Yale University Press would do a great public service by providing a copy of this book to every federal district judge in the country and to every member of the congressional judiciary committees. And if it is not used as a teaching text in every law school in America, that will be a great pity.