Interest Groups, Judicial Review, and Local Government

Date01 March 1966
Published date01 March 1966
Subject MatterArticles
Wesleyan University
SCHOLARSHIP on judicial review of state and local government has
been high on structure, power, and policy and low on process. The classic
JL work of Dillon, McQuillin and McBain proved the power of courts in limiting
municipal rule against state policy, and state action in many fields against federal
constitutional limitations. Rhyne has shown, in an up-to-date treatise, that judge-
made doctrines continue to govern state and local practice.2 The inferior position
of these governmental units to both state and federal courts has long been illustrated
in law school casebooks on municipal corporations and explained in political science
texts on state and local government.
The importance of courts is well understood; the ways in which these passive
instruments of government are stimulated to action is not.3 My attention to the
details of litigation sponsored by organized interest groups flows from a central
assumption that the important thing about appellate courts in the American system
is that these courts govern by making policy. They may do this by deciding what is
constitutional or unconstitutional and they may do it by the interpretation of stat-
utes, administrative rules and regulations, the decisions of lower courts and so on.
To say that courts are important in American government is to speak the obvious.
But emphasis on their importance because of their policy-making function is not
always the starting point in the textbook treatment of the judiciary. If it were, I
believe there would be more attention to the ways cases are brought and to identify
the true parties in such cases. Political scientists have not sufficiently moved off the
dime of constitutional doctrine to describe the real gold of politics in the judicial
process. This article looks at litigation conducted by action organizations and points
to the importance of group agitation for judicial review of state and municipal
public policy.
John F. Dillon, Commentaries on the Law of Municipal Corporations (5th ed.; Boston: Little,
Brown, 1911), 5 vols.; Eugene McQuillin, A Treatise on the Law of Municipal Corpora-
tions (2d ed.; Chicago: Callaghan, 1945), 7 vols.; Howard Lee McBain, The Law and
Practice of Municipal Home Rule (New York: Macmillan, 1916).
Charles Rhyne, Municipal Law ( Washington : NIMLO, 1957).
The criticisms of Lawrence J. R. Herson in "The Lost World of Municipal Government," 51
APSR 330 (1957), that the texts neglected the political aspects of the judicial process
have, to some extent, been remedied. Yet these texts have not yet incorporated the find-
ings on group sponsorship of litigation as reported in the journals. The leading book in
the new wave, Charles R. Adrian, Governing Urban America (2d ed.; New York:
McGraw-Hill, 1961), includes a chapter on the law of municipalities, pp. 197-231, and
another on intergroup activity and political power, pp. 119-46. Each is excellent — and
I have often reread them — but the two subjects are largely unconnected to each other.
more recent text, Duane Lockard, The Politics of State and Local Government (New
York: Macmillan, 1963), comes closer to an integration of the two subjects. He does this
especially in chapters on the politics of constitutionalism, on the political process and on
politics and the judiciary.

The Supreme Court of the United States in 1963 vindicated the right of the
most successful litigating organization of the day, the National Association for the
Advancement of Colored People, to pursue its goals through the courts. In NAACP
v. Button,4 the Court recognized the extent of group sponsorship of litigation and
certified it against state legislation that aimed to severely limit cases brought by
organizations. This was, of course, one way for a state government to protect its
policies against judicial review. The failure of Virginia and other southern states to
stop organizations from litigating, further legitimized judicial review and recognized
the right of organizations to seek redresses in the judicial forum. This is what Mr.
Justice Brennan said for the Supreme Court:
In the context of NAACP
objectives, litigation is not a technique of resolving private differ-
ences ; it is a means for achieving the lawful objectives of equality of treatment by all govern-
ment, federal, state and local, for the members of the Negro community in this country. It is
thus a form of political expression. Groups which find themselves unable to achieve their objec-
tives through the ballot frequently turn to the courts. Just as it was true of the opponents of
New Deal legislation during the 1930’s, for example, no less is it true of the Negro minority
today. And under the conditions of modern government, litigation may well be the sole prac-
ticable avenue open to a minority to petition for redress of grievances.
The NAACP is not a conventional political party; but the litigation it assists, while serv-
ing to vindicate the legal rights of members of the American Negro community, at the same
time and perhaps more importantly, makes possible the distinctive contribution of a minority
group to the ideas and beliefs of our society. For such a group, association for litigation may
be the most effective form of political association.’
Academic categories of state and local government on the one hand and civil
rights and civil liberties on the other have not kept organized interest groups from
action. These are the propositions that link them together: (1) For some thirty
years the Supreme Court has been nationalizing the constitutional rights of individ-
uals. (2) In hundreds of decisions dealing with freedom of expression and religion,
rights of defendants and rights of racial minorities against segregation and discrim-
ination the Supreme Court has spelled out new constitutional doctrine. (3) The bulk
of these cases have questioned state and municipal public policy with the result that
many, many state statutes, municipal ordinances, and other forms of state action
have been invalidated. (4) National organizations have participated in practically
100 per cent of these cases by providing financial or legal assistance, by appearing
as arrticus curiae, or by giving strategic advice.6
The most active organizations include the following: the National Association
for the Advancement of Colored People, the American Civil Liberties Union, the
Commission on Law and Social Action of the American Jewish Congress, the Amer-
ican Committee for Protection of the Foreign Born, the Emergency Civil Liberties
371 U.S. 415 (1963).
ld., at 425.
For a survey of the activity of organizations in the major cases of recent years, see Comment,
"The South’s Amended Barratry Laws: An Attempt to End Group Pressure Through the
Courts," 72 Yale L. J. 1613-45 (Summer 1963). The great changes in the legal status
of Negroes are explained in Jack Greenberg, Race Relations and American Law (New
York: Columbia U. Press, 1959).

Committee, the Watchtower Bible and Tract Society (Jehovah’s Witnesses), Amer-
ican Jewish Committee, Japanese American Citizens League, Congress of Racial
Equality, and Protestants and Other Americans United for the Separation of Church
and State. Attorneys employed by these and other organizations provide the expertise
that continuous attention to a problem brings to practitioners. Their persuasive
powers are applied to the courts in long series of cases which spread over many years.
That this has, at least, sometimes been true may be seen by looking briefly at some
of the most celebrated Supreme Court reviews of state and local government policy
in civil rights and liberties.
The School Segregation cases of 1954 and 1955 were themselves the product
of litigation sponsored by the NAACP Legal Defense and Education Fund.7 These
five cases had been preceded by some fifty favorable Supreme Court decisions extend-
ing over the previous thirty years. Those decisions have been followed by a steady
stream of litigation which has seen NAACP lawyers in an average of ten appear-
ances a year in the Supreme Court. The Association has also participated in numer-
ous cases in the lower federal courts. Certainly some 90 per cent of this vast litigation
has put in question a policy adopted by Southern states and municipalities. Much of
it has dealt with the segregation of school pupils but, of course, local school arrange-
ments are public policy.
The Flag Salute cases of 1940 and 1943 8 as well as the Prayer cases of 1961 and
1963 dealt also with public school policy and resulted in the invalidation of local
law by the Supreme Court. Manwaring has shown that the flag salute question had
stood unanswered for years because no organization would challenge the practice in
the courts. The Jehovah’s Witnesses did so in the 1930’s and after several tries gained
review in the Supreme Court. They were finally successful in 1943 in having the
obligatory flag salute for public school students invalidated.lo
Individuals who conscientiously opposed the recitation of prayers in public
school were parties to the recent cases on this question. This was necessary to estab-
lish standing as a party in the cases. But despite the national prominence of some
successful parties in these cases -
one thinks back to Mrs. Vashti McCollum as well
as to Mrs. Pauline Murray, perhaps America’s two most...

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