Democracy by Decree: What Happens When Courts Run Government.

• Author: Rotunda, Ronald D.
• Position: Book Review

Ross Sandler and David Schoenbrod New Haven and London: Yale University Press, 2003, 280 pp.

Professors Sandier and Schoenbrod collect a compelling set of vignettes that show how the courts, over the last few years and at an exponential rate, are replacing state and local officials in running many important state and local services, such as welfare, jails, prisons, noise pollution, and foster care. The judges typically issue details decrees, totaling hundreds of pages, instructing mayors, governors, prison wardens and others how to run government. Instead of government by the people, there is government by judicial decree, or--more precisely--government by plaintiffs' lawyers, for they are the ones that draft the decrees.

The authors should know their subject. During the 1970s, both of them worked as public interest lawyers for the National Resources Defense Council, and their list of acknowledgments includes people such as the long-time executive director of the NRDC, the former chief of Vice President Hubert H. Humphrey's office of liaison with state and local governments, and Edward I. Koch, former mayor of New York City.

Now, after decades of experience, the authors have a different view. "Believers in democracy by [judicial] decree," they note, "argue that the political process is not fast enough or cannot be trusted. We thought the same when we were public interest lawyers but we were wrong. Looking back, we see that our own accomplishments came chiefly from politics as usual, not democracy by decree" (p. 31).

The authors explain that when they first started bringing suits in 1973 they lost, but by "the end of the 1970s we were winning these cases and negotiating lengthy consent decrees that bind such governments this day" (p. 28).

Some of the authors' friends also no longer share the same enthusiasm for the judicial revolution that they helped create. When Edward I. Koch was a congressman, he had no trouble voting for federal laws that mandate vague restrictions on local government. "I voted for that [a federal law that created a right to public transportation for the disabled]. You'd be crazy to be against that. When you are a member of Congress and you are voting a mandate and not providing funds for it, the sky's the limit" (p. 20). As New York City mayor, he often found himself hamstrung by these judicial decrees.

The judicial revolution had a very quiet beginning. When Congress considered the Clean Air Act of 1970, it created...