Norm change or judicial decree? The courts, the public, and welfare reform.

• Author: Wax, Amy L.
• Position: Twenty-Seventh Annual National Federalist Society Student Symposium

The topic for this panel--the relationship between community values and judicial decision making--calls to mind Supreme Court cases on high-profile issues that have provoked strong criticism from the public. Decisions regarding church-state relations, (1) abortion, (2) free speech, (3) government regulation of property rights, (4) and affirmative action (5) are recent examples. This Essay addresses another example of tension between judicial decrees and popular attitudes. From the 1960s through the 1980s, key Supreme Court decisions addressing the administration of public welfare programs were at odds with the dominant values of much of the nation. For a number of reasons, that conflict has now largely been resolved. Therein lies a revealing story.

In 1996, after decades of experimental and pilot programs, Congress enacted a massive overhaul of the federal poverty-relief scheme. As part of a comprehensive welfare reform package sponsored by the Clinton Administration, the core federal cash-aid program, Aid for Families with Dependent Children (AFDC), was repealed and replaced with a work-based assistance program, Temporary Assistance for Needy Families (TANF). (6) These changes coincided with a significant decline in the role of the courts in shaping policy in the welfare area. Although the federal courts considered a range of important challenges to laws and regulations governing poverty relief and economic redistribution between the 1960s and the mid-1980s, they have been relatively uninvolved since that period and have not played a major role in sorting out issues arising from the welfare reform legislation. Moreover, despite widespread attention to growing economic and social inequality, (7) there is no evidence of a significant push to reenlist courts in efforts to address these problems. A visit to informational and advocacy websites on poverty issues bears out this abandonment of judicial avenues. (8) All told, there is little reason to believe that courts will significantly shape the law and policy of poor relief in the near future.

This picture represents a significant change. In the 1960s and 1970s, welfare-rights advocates were eager to use the courts to advance their agenda. Their main priorities at that time included establishing economic rights and invalidating restrictive conditions on entitlement to welfare benefits. (9) Poverty law courses began to appear in law school curricula around the country, and instructors became handmaidens of the activist welfare project. (10) The goal was to teach students how to litigate on behalf of the poor by arguing for expanded access to public assistance. On the theory that existing benefit conditions enshrined the race and class prejudices of a benighted majority, liberalizing poverty relief was regarded as an important rights-expanding project in keeping with a broader civil rights agenda. (11) As discussed more fully below, the results were decidedly mixed, with activists scoring some key victories while failing to achieve their broader goal of securely establishing positive economic rights.

Law students today are only dimly aware of the landmark decisions in the welfare area that received widespread attention at the time they were decided. Because issues surrounding public assistance do not currently preoccupy the courts, these earlier decisions are viewed as historical relics with little ongoing significance. That view is overly simplistic. Although the controversies surrounding the Supreme Court's welfare-rights decisions have largely abated, the trajectory of the courts' involvement in these issues sheds important light on the interplay between community norms and judicial decrees.

The courts' declining role in shaping the direction of social welfare law and policy is best understood as the culmination of a decades-long tug-of-war between community values--as expressed through legislative restrictions on poor relief programs--and the Supreme Court's vision of the proper ambit for those values in setting poor relief policies. The role of the courts has now abated because of two signal developments in the social and legal landscape. First, recent revisions in the basic New Deal scheme for federal poverty programs have largely corrected one source of popular discontent in the administration of welfare programs-the unfairness and perverse incentives flowing from the failure to require recipients to work. To the extent that these revisions have been challenged at all, the courts have largely upheld the imposition of strict work requirements. Second, sexual mores have shifted dramatically. They are now far more in sync with the decades-old (and originally unpopular) decisions invalidating benefits restrictions tied to unconventional sexual conduct and nontraditional families. Although the government has not given up on trying to support--and revive--the traditional nuclear family, it has largely abandoned the direct use of welfare law and policy to regulate, punish, or reward private reproductive behavior.

Recounting this story requires some historical background. The New Deal ushered in an important sea change in our country's approach toward the poor. Until the 1930s, poverty relief was principally a local charge. (12) Modest antipoverty programs, such as aid for widowed mothers, were funded and administered largely at the state or municipal level. (13) As part of a comprehensive series of New Deal reforms that included both social insurance and direct subsidies, Congress established the Aid to Dependent Children Program, which eventually became Aid for Families with Dependent Children (AFDC). Congress designed the program, which the states administered, to support families with children left destitute by the death or abandonment of a parent (usually the father). The stated goal was to relieve mothers in those families of the need to work, thus leaving them free to care for their children. (14)

Although AFDC was initially a small and uncontroversial program, its popularity declined as the number of recipients grew and the beneficiary population changed. At first, recipients were mostly widows and divorcees. (15) After 1960, a burgeoning population of never-married single mothers and their out-of-wedlock children replaced those earlier recipients. (16) Although nonwhites rarely received benefits during the first decades of the program, the number of black single mothers on welfare expanded and became a significant part of the welfare population. (17) Community outreach programs spearheaded by welfare-rights advocates helped swell the rolls. These developments engendered concerns that AFDC encouraged dependency, undermined the traditional family, and fueled the growth of an urban, black underclass culture. (18) Dissatisfaction with a growing, idle welfare population became a salient political issue, fueling the rise of the Republican Party in the 1970s and beyond. (19)

Throughout this period, the AFDC program was intermittently revised to introduce limited training and work requirements, but insufficient funding and the absence of political will prevented these innovations from being implemented effectively. (20) For most single mothers with children, especially in urban areas, welfare benefits were easily obtained and appeared to continue indefinitely. For more and more recipients, welfare did indeed become "a way of life." (21)

The groundswell of popular concern grew slowly from the 1970s through the 1990s, finally culminating in decisive political action. The 1996 welfare reform legislation, TANF, introduced three key changes in the federal scheme of poverty relief. First, it significantly expanded states' discretion in doling out benefits, allowing greater ambit for innovative programs, conditions, and restrictions. Second, it imposed substantial work requirements for adults--including single mothers--as a condition of receiving aid. Third, it established a strict five-year limit on benefits for most recipient families. (22)

What role have the courts played in these historical developments? Assessing the courts' contribution to the current state of welfare law and policy requires some understanding of the core principles that govern the politics of poverty relief in this country. As Martin Gilens has documented, public opinion on the optimal design of public welfare programs has long embraced the distinction between the deserving and undeserving poor. (23) These categories roughly track the so-called luck egalitarian divide between those who suffer deprivation through bad luck or forces outside their control and those whose poverty can be traced in large part to their own imprudent choices. (24) Although voters are generally skeptical of government-sponsored handouts, they are willing to help people down on their luck. That is, they support assisting people who are victims of misfortune, but are reluctant to bail out those perceived as behaving irresponsibly. In defining who is irresponsible and who is merely unlucky, voters have consistently embraced something of an ethos of conditional reciprocity for public welfare. They robustly endorse fundamental norms of self-reliance, and believe that able-bodied persons should strive to minimize their economic dependency. (25)

Historically, the distinction between bad luck and bad choices influenced transfer policies in two important ways. First, welfare rules were structured to take account of beneficiaries' behavior-including their sexual conduct--as it affected their economic need and dependency. At the time of AFDC's enactment, sexual relations out of wedlock were viewed with disapproval. The public was well aware that such relationships often produced children and mothers who were destined to become dependent on public assistance. Women who had sexual relations and gave birth to children outside of marriage, without the customary support of the male provider, were viewed as acting...