Activist Lawyers Repent

• DOI: http://doi.org/10.1111/j.1540-6210.2004.00395.x
• Author: John A. Rohr
• Published date: 01 July 2004
• Date: 01 July 2004

500 Public Administration Review •July/August 2004, Vol. 64, No. 4

Activist Lawyers Repent

John A. Rohr, Virginia Tech

Ross Sandler and David Schoenbrod, Democracy By Decree: What Hap-

pens When Courts Run Government (New Haven, CT: Yale University Press,

2003). 256 pp., $30.00 hard, ISBN: 0-300-09272-5.

Readers who like their administra-

tive law with a dash of True Confes-

sions will find this book an absolute

delight. The authors, who were, by

their own admission, “public interest

lawyers” for the National Resources

Defense Council during the 1960s and

70s, have repented of their activist

ways that helped bring the federal ju-

diciary to the sorry state the authors

find it in today.

The subtitle announces the theme

of the book, and if the subtitle were

changed to a question, the answer

would surely be “bad things, very bad

things indeed.” At the outset, we are

told that “a core argument of this

book” is that “[e]lected officials invite

judges to take charge of policy mak-

ing in order to evade responsibility for

politically controversial choices” (v).

Judicial policy making generally takes

the form of consent decrees, which the

authors pinpoint as the site of most

judicial misdeeds. When judges allow

a legal claim to go forward, they often

encourage lawyers for both plaintiffs

and defendants to negotiate a plan that

will not only remedy the precise wrong

before the court, but also fix the entire

system (for example, a department of

child and family services) implicated

in that wrong. When a state or local

government finds itself as a defendant,

pressure is brought to bear on gover-

nors, mayors, and commissioners to

accept the terms of the negotiations,

which are then incorporated into a de-

cree backed up by judicial authority.

Because this decree binds the succes-

sors of the officials who agreed to it in

the first place, democratic governance

of matters covered by the decree is

consequently limited. Such matters,

having found a safe haven in the court

that accepted the settlement, are no

longer revisited in the rough and

tumble of democratic politics, and en-

joy judicial protection for years, even

decades, after the issuance of the de-

cree. This common practice under-

mines “the public’s right to democrati-

cally accountable state and local

governments” (204). Judges’ failure to

develop rules to limit the scope and

duration of decrees is denounced as

nothing less than “an embarrassing

hiatus in judicial good citizenship”

(228).

The authors’ argument pivots on the

concepts of soft rights and controlling

groups. Soft rights are aspirations.

Worded positively, they are open-

ended, like many of the affirmative

rights one finds in European constitu-

tions (often drafted under the influence

of socialist governments): adequate

health care, full employment, mater-

nity leave, etc. In sharp contrast, tra-

ditional American constitutional rights

are worded negatively—“Congress

shall make no law respecting an es-

tablishment of religion, or prohibiting

the free exercise thereof; nor shall any

person…be deprived of life, liberty or

property…; Excessive bail shall not be

required, nor excessive fines imposed,

nor cruel and unusual punishments

inflicted; nor deny to any person

within its jurisdiction the equal pro-

tection of the laws;” etc. Violations of

negatively worded rights are more

amenable to judicial correction than

their positive counterparts. Ordinarily,

a court can redress infringements upon

negative rights by simply telling the

offending party to cease and desist or,

if the irreparable harm has already

been done, by ordering the offender

to compensate the wronged party. Not

so with soft rights like a “free appro-

priate public education” (46) for chil-

dren with disabilities or the “right to

clean air” that the authors find in the

Clean Air Act. The aspirational ele-

ment of such soft rights means that, at

best, local governments can “attain

them only partially because they are

idealistic” (100). The open-ended na-

ture of such rights means that judges

trying to enforce them invariably find

themselves entangled in a managerial

process. When does one say that a dis-

abled child is receiving an education

that is appropriate enough?

When they travel this path, judges

soon find themselves “up to their necks

in budgetary, personnel, regulatory and

Book Reviews | M. Jae Moon, Editor

John A. Rohr is a professor of public administration at Virginia Tech. He has lectured extensively on questions of ethics and law in

public administration. His most recent book,

Civil Servants and Their Constitutions

(University Press of Kansas, 2002) won the coveted

Brownlow Award issued annually by the National Academy of Public Administration.