Government by Judiciary

Appendix B: Judicial Administration of Local Matters

Judiciary_451-500.indd 30 5/14/11 11:59 AM APPENDIX B Judicial Administration ofLocal Matters In a recent evaluation of the Court's assumption of the policymaking role, Archibald Cox wrote: [W]here the older activist decisions merely blocked legislative initiatives , the decisions ofthe 195o's and 196o's forced changes in the established legal order. The school desegregation cases overturned not only the constitutional precedents built up over three quarters ofa century but the social structure ofan entire region . . . The one man, one vote rule asserted that the composition of the legislatures of all but one or two of the so states was unconstitutional and had been unconstitutional for fifty or a hundred years [or more] ... New York Times Co. v. Sullivan overturned the law of libel as it had prevailed from the beginning. Cox comments: Decisions mandating reforms in the on-going activities of other branches of government often require affirmative action. The affirmative action can be secured [lacking voluntary cooperation, only] by the courts themselves embarking upon programs having typically administrative, executive and even legislative characteristics heretofore thought to make such programs unsuited to judicial undertaking [and arguably therefore never comprehended in the original grant of judicial power]. The most prominent examples are the school desegregation cases. The court determines which students will be assigned to each school, how teachers shall be selected, what security measures shall be adopted, and even where new schools shall be built. When trans- Judiciary_451-500.indd 31 5/14/11 11:59 AM Judicial Administration ofLocal Matters portation is required, the court directs the expenditure ofhundreds of thousands of dollars. . . . In Boston, for example, the city was induced by fear of fiscal disaster to plan the elimination of I 9I teachers. The federal court went down the list, school by school, even hearing the personal pleas of individual teachers, and decided to allow 6o layoffs and disallow I 3I. Desegregation decrees have all the qualities of social legislation ... I can think of no earlier decrees with these characteristics in all constitutional history.1 All this on the theory that "the Constitution requires busing"! A summary of judicial takeovers of legislative and executive prerogatives is furnished in the following article by Wayne King: A Federal court ruling ordering Mobile to scrap its city government and replace it with a new one more favorable to blacks has generated a storm of protest in this city, including a petition drive to impeach the judge. "This is the first time," said Mayor Lambert C. Mims in an interview , "that the Federal Government has told a free people what kind of government they must have." "If they can do that, they can tell you what time to go to bed, what time to get up, and whether to have pork and beans for lunch." Yesterday, a newly formed group called the Constitutional Crisis Committee began distributing petitions calling for the impeachment of Federal Judge Virgil Pittman of the Southern District of Alabama. Judge Pittman two weeks ago ruled in a class-action suit brought by city blacks that the Mobile system of government, a threemember city commission, with each member elected by citywide vote, "precludes a black voter from an effective participation in the election system." I. Archibald Cox, "The New Dimensions of Constitutional Adjudication," 5I Washington L. Rev. 791, 802, 814-815 (1976). [The "dominating characteristic of judicial review ... is that it is ordinarily a negative power only- a power of refusal. The Court can forbid somebody else to act but cannot usually act itself; in the words of Professor (Thomas Reed) Powell, it 'can unmake the laws ofcongress, but cannot fill the gap.' "Edward S. Corwin, The Twilight ofthe Supreme Court, 122 (1934) (emphasis in the original).] Judiciary_451-500.indd 32 5/14/11 11:59 AM APPENDIX B He ordered that in the municipal election next year the commission was to be replaced by a mayor elected by citywide vote and nine council members elected from single-member districts. Given the city's racially polarized voting pattern, this would likely result in the election of at least three and possibly four blacks. The court found that the vote of Mobile's blacks, 35 percent of the population, was "diluted" by the white majority, making it unlikely to elect a black in a citywide vote. The ruling is believed to be the most extensive intrusion by the courts so far into...