The Supreme Court, Democracy and Institutional Reform Litigation

29 Pages Posted: 26 Aug 2005

See all articles by Ross Sandler

Ross Sandler

New York Law School

David Schoenbrod

New York Law School

Abstract

In an unexpected portion of its unanimous opinion in Frew v. Hawkins, 540 U.S. 431 (2004), the Supreme Court broke new ground on an important question involving consent decrees. The case began when Texas state officials invoked the Eleventh Amendment in their resistance to a federal Medicaid consent decree. The Court quickly disposed of that argument, but Justice Anthony Kennedy, writing for the unanimous Court, took the opportunity to forcefully state that consent decrees that intrude on the policy making prerogatives of state and local officials more than is necessary to protect rights undercut the effective functioning of elected state and local governments. In that context Justice Kennedy broadly discussed the Court's rulings on modifications of consent decrees.

In this essay, we argue that Frew significantly eased the standards for modification of consent decrees previously set out in Rufo v. Inmates of Suffolk County Jail. Frew as a whole received little attention and the part of it easing modification seems to have received no notice at all. It is, however, possible to gauge the reaction it will produce from the reaction to our book, Democracy by Decree: What Happens When Courts Run Government (Yale U. Press, 2003). The book came out a year before Frew, proposed the kind of easing adapted by that case, and explained it in terms similar to that stated by the Supreme Court. In this essay, we reply at once to Frew's potential critics and our actual critics.

Citing our book and Frew, a bi-partisan group of senators and representatives introduced this spring the Federal Consent Decree Fairness Act. The act would not affect the power of federal courts to approve consent decrees, but would allow state and local defendants to more easily get decrees modified or vacated when the decrees are no longer necessary to protect rights. The bill was the subject of hearings in the House on June 21 and in the Senate on July 19, 2005.

Keywords: institutional reform litigation, Frew, consent decree, injunction, modification, federalism

Suggested Citation

Sandler, Ross and Schoenbrod, David, The Supreme Court, Democracy and Institutional Reform Litigation. New York Law School Law Review, Vol. 49, No. 3, pp. 915-942, 2004-2005, NYLS Legal Studies Research Paper No. 05-06/04, Available at SSRN: https://ssrn.com/abstract=791687

Ross Sandler

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

David Schoenbrod (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2339 (Phone)
212-431-9205 (Fax)

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