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Review of "Democracy by Decree: What Happens When Courts Run Government"
By Ronald D. Rotunda
Introduction
Democracy by Decree: What Happens When Courts Run Government
Ross Sandler and David Schoenbrod
New Haven and London: Yale University Press, 2003, 280 pp.
Professors Sandler 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).
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