Judges With Attitude

The Supreme Court Breakfast Table

Judges With Attitude

The Supreme Court Breakfast Table

Judges With Attitude
An email conversation about the news of the day.
June 26 2009 6:15 PM

The Supreme Court Breakfast Table


Dahlia and Linda,

The passion of Justice Breyer's dissent in Horne v. Flores flows in part from his belief in the importance of what he calls "the underlying subject matter of this proceeding." The case, he noted, concerns the rights of Spanish-speaking students attending public school near the Mexican border to receive the English-language tools they need for full participation in a society where English is the predominant language.


In the Equal Educational Opportunity Act, Congress sought to ensure that children who come to America learn English by requiring state and local governments to take appropriate action to overcome language barriers. The district court found that there were severe deficiencies in the educational program for English-language learners in Nogales, Ariz., that was attributable to lack of state funding, and the court ordered the state to provide funding that was rationally related to the costs of an appropriate program. In this action, the state school superintendent and the Legislature, citing changes in their programs, asked the district court to release the state from any further obligations under the order. The district court found the funding order was still necessary because deficiencies in the program remained. The 9th Circuit affirmed.

The Supreme Court reversed and remanded, holding that changes may have occurred that might warrant release from the funding order. It sent the case back to the lower courts to examine whether release from the funding order was warranted.

So why did the case produce so much heat? The answer, as Linda notes, is that it became characterized as an instance of "institutional litigation."

Ah yes, Linda, I do remember the days in the '70s and '80s when the phrase "institutional litigation" was even more of a flash point than, say, "abortion rights" at many of the events I attended at conservative think tanks. There were liberals in those days who espoused litigation not simply as a method of resolving disputes between litigants but as a means of widespread social and economic reform, often involving judicial decrees regulating how state institutions were managed. To conservatives, the idea of federal judges actually running school systems, prisons, welfare agencies, and the like was anathema. In some cases, however, rule by judicial decree was the only means available for vindicating core individual constitutional rights that were being violated. A prime example: litigation involving prison systems whose systemic and horrible conditions constituted cruel and unusual punishment.

The one kind of litigation that raised the most genuine concern about judicial role was the use of general constitutional provisions as a basis for judges to reorder state and local government budgeting decisions. Although Horne v. Flores involves funding, itwas, as Linda notes, based on an express legislative command from an act of Congress and not on rights found by judges from general language of the Constitution.

Although the Supreme Court reversed, it did not order the lower courts to release the state from its obligation. Instead, it told the lower courts that they had to reconsider the state's argument that it should be released from any funding obligation in light of changed circumstances. The court did not pronounce the end of the district court's jurisdiction (as the petitioners had asked). For the equal-language advocates, that was a victory. (I should note that my law firm partner Sri Srinivasan argued this case before the Supreme Court pro bono for the advocates seeking language funding. My former student Kenneth Starr argued for the other side.)

What the dissenting justices found upsetting about the decision to set aside the lower court's order was the majority opinion's adoption of a special form of appellate review of lower court orders in "institutional reform litigation." Nothing in the federal rules or general equitable principles, they argued, provides a basis for setting aside the normal deference to trial court's findings and discretion for one particular category of cases. In his dissent, Breyer asked, "Does the Court mean to suggest that there are other special, strict pro-defendant rules that govern review of district court decisions in 'institutional reform cases.' " And what are those rules, and when is a case an "institutional reform" case, he asked. The court, he concluded, "may mean its opinion to express an attitude"—he means a negative attitude—toward such cases. "An attitude," Breyer added, "is not a rule of law."

So, the court wants federal courts to be more receptive to states' desires to get out from under federal court decrees, but it is not prepared to create clear new legal rules that would require that result. Some lower courts may take the hint by ending those orders, but others may take up the court's invitation to justify keeping their orders in place by making more detailed and specific findings. The effect? As with so much this Term, it's too early to tell.


Walter Dellinger was head of the Office of Legal Counsel from 1993 to 1996.