This column first appeared Feb. 8 on Law and Liberty.

This is the first installment of a two-part post on the long-running lawsuit involving Texas’ foster care system, styled M.D. v. Abbott.  I begin with an overview of the numerous problems for democratic governance that are created by “institutional reform litigation.”

State and local governments manage the most important—and challenging—tasks necessary for the orderly coexistence of individuals in modern societies. We rely on state and local governments to operate police and fire departments (public safety), to provide education for our children (public schools), to incarcerate criminals (jails and prisons), to build and maintain roads and other infrastructure, and to dispense a myriad of social services to the needy and less fortunate among us. Some of these functions are dangerous, some are complicated, and some—such as special education, ameliorating poverty, and dealing with child abuse and parental neglect—are intractable, even Sisyphean, in nature.

All these tasks require considerable resources, and most could be performed better with more resources. Taxpayer funds, however, are finite; in a democracy, voters will consent to a certain level of exaction to finance governmental operations, but not beyond that limit. Health care competes with highway construction, which competes with teacher salaries, and so forth. Hence, the quantity and quality of the various services provided by state and local governments—all largely dependent on the level of funding they receive—ineluctably entail political choices made by state and local elected officials. The allocation of scarce resources through this process of budgetary wrangling will never fully satisfy any of the competing constituencies (all of whom would like more), but the institution of representative self-government—manifested by elections—gives legitimacy to the compromises that inevitably result.

This description of government decision-making is highly-simplified, to be sure. It omits the influence of special interest groups in elections, campaign finance, lobbying of elected officials, political parties, patronage, media coverage, public employee unions, cronyism, federal mandates, and occasional corruption. All those factors affect the political compromises ultimately struck, but they are merely the messy details of democracy. (Some factors, such as public employee bargaining, are preventable, but that is a separate issue.) The point is, compromises are unavoidable in a democratic society, and politics generally determines how such “bargains” are made—how the fiscal pie is divided. The wisdom of federalism is that state and local governments can experiment and learn from each other’s (and their own) mistakes. Perfection is a utopian delusion.

What if a disgruntled citizen (or group of citizens) unhappy with a particular compromise could circumvent the political process altogether and increase its share of the budgetary pie by filing a lawsuit in federal court, where the decision-maker is insulated from the electoral pressures that produced the disappointing outcome?  We would get—and have gotten—substantial interference with state and local governments in the form of “institutional reform litigation.” Thanks in part to the encouragement of Harvard law professor Abram Chayes in an influential 1976 article, “The Role of the Judge in Public Law Litigation,”[1] federal courts have increasingly intervened on behalf of litigious interest groups to micro-manage complex government functions, such as prisons, schools, and social services.

The lawyers bringing these suits are heralded as acting in the “public interest,” even though the objective is to stymie the results of a political process accountable to the only relevant public—the voters. Virtue-signaling law firms enthusiastically donate their litigation efforts in fashionable “pro bono” programs, oblivious to the fact that pro bono publico (“for the public good”) is not served by overriding the decisions of elected officials, sometimes saddling the public with substantially greater tax burdens. Undaunted, beginning in the 1970s an alphabet soup of advocacy groups and special interest litigation organizations began a campaign to reshape public policy through lawsuits, in effect subjecting state and local governments to the control of activist judges, a process that is invariably applauded by the left-leaning legal establishment as progressive and forward-thinking (meaning that the results suit liberals’ policy preferences). Shouldering aside mayors, governors, school boards, and legislators (and the voters who elected them), imperious judges—presuming to be the heirs of the civil rights movement—arrogantly dictate what is in the public interest.

Judges are not well-suited to act as free-wheeling social engineers. Feel-good motives aside, institutional reform litigation typically results in extended litigation, usually fails to deliver the desired reforms, and often produces expensive debacles. For example, a decade of litigation against the public school system in Kansas City, Missouri, presided over by federal district judge Russell Clark beginning in 1985, was a staggering failure.   Despite ordering Kansas City to implement massive increases in spending (and taxes), producing absurdly-lavish facilities (including “an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability,” and more), Judge Clark failed to improve test scores. Billions of dollars were wasted, with victimized Kansas City taxpayers left holding the bag.

Other examples abound.  In a book ironically titled Democracy by Decree, law professors Ross Sandler and David Schoenbrod concluded that decades of federal court litigation over New York City’s special education programs (Jose P. v. Ambach) accomplished little except to astronomically increase the special education budget at the expense of other students, with no discernable improvement of educational outcomes. At a cost of billions of dollars, Judge Eugene Nickerson’s cumbersome oversight imposed detailed procedures, rigid compliance obligations, and bloated administrative payrolls, while simultaneously undermining the city’s general education. The principal beneficiaries of the court’s sclerotic supervision were the burgeoning administrative bureaucracy, the plaintiffs’ attorneys, and richly-compensated “special masters.”

Judicial supervision of California’s prison system over the course of two decades of nonstop litigation by prisoner rights advocates was similarly flawed, resulting in the compelled release of up to 46,000 prisoners—endangering public safety—and over $1 billion in increased health care spending for inmates. California’s experience is, sadly, not unusual. Similar litigation previously plagued New York’s prison system.  Sandler and Schoenbrod found that “decrees have ruled prisons in forty-one states and local jails in fifty states.” A federal judge in Houston has even ordered Texas to provide air-conditioning to prison inmates.

Courts have also frequently usurped local control in the areas of school finance, foster care, welfare benefits, bilingual education, caring for the homeless, drug treatment, police practices, configuring public school attendance zones, and a host of other services provided by state and local governments. When improvements in the challenged services do occur following litigation, it is often a result of the legislature spending more money, which likely would have happened in any event.

Critics have pointed out the shortcomings of using consent decrees—sometimes as thick as phone books— to manage government functions, and some of the worst abuses of so-called institutional reform litigation have been corrected. But the larger problem remains. So long as aggressive special interest groups can defeat political “bargains” by shopping their grievances to an activist federal judge, who then has the power to certify class actions, appoint “special masters” to act as roving fact-finders and free-lance policymakers, identify amorphous—and often wholly fictitious—constitutional rights imposing affirmative obligations on the government (to be funded by taxpayers), and issue injunctions ordering increased spending, both federalism and representative democracy will be compromised.

Classical liberals and libertarians can debate what the appropriate scope of government is, and what services should be left to the free market (or private charities) to provide, but surely we can agree that unelected federal judges should not overrule budgetary decisions made by elected officials unless clearly necessary to vindicate an express constitutional right—which is rarely the case. Most institutional reform litigation is simply liberal social engineering, badly done.

Part 2 of this post will discuss the ongoing litigation involving Texas’ foster care system, in the case pending before federal district judge Janis Graham Jack in Corpus Christi, M.D. v. Abbott.  The lawsuit was filed in 2011 by a New York-based advocacy group, Children’s Rights, which was originally a project of the ACLU.  It has dragged on for nearly a decade, resulting in an initial order in December 2015 and another, 116-page decision, on January 19, 2018. (The Fifth Circuit immediately stayed that decision pending appeal.) The case is an archetypal “institutional reform litigation”—Judge Jack, appointed by President Bill Clinton, is a liberal activist; the plaintiffs were seeking a political objective, greater funding for foster care; and the judge employed the familiar gimmick of making up a new constitutional right, the novel “right to be free from an unreasonable risk of harm.”

As with all such lawsuits, the transparent goal was to circumvent the legislature and effect social change by judicial fiat. The primary difference between this case and prior foster care lawsuits against other states is that Texas declined to enter into a consent decree and fought the case instead. Stay tuned for details.

 

[1] 89 Harvard Law Review 1281 (1976).

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