The Supreme Court, Democracy and Institutional Reform Litigation

In an unexpected portion of its unanimous opinion in Frew v. Hawkins, 540 U.S. 431 (2004), the SupremeCourt 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. TheCourt 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\u27s 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 thepart of it easing modification seems to have received no notice at all. It is, however, possible to gauge thereaction 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\u27s potential critics and our actual critics. Citing our book and Frew, a bi-partisan group of senators and representatives introduced this spring theFederal 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 thedecrees 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