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img073 - 148 Pelitifl by Other Means violated a...

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Unformatted text preview: 148 Pelitifl by Other Means violated a plaintiff’s rights and ordering that agency to devise reme— dies, the courts now issue detailed decrees, setting forth the man- ner in which the agency must thereafter conduct its business. Suits challenging conditions in state prisons, for example, have produced a host of detailed judicial orders that specify living space, recre— ational programs, and counseling services that must be provided to all prisoners and that order states to appropriate the necessary funds. Increasingly, judges have also made use of special masters, under the control of the court, to take charge of the day—to—day operations of such institutional defendants as the Boston school system and the Alabama state prison system. The federal judiciary thus can now provide litigants with remedies that historically were available only through the executive and legislative branches.16 In the 19605 and 19705 the most important beneficiaries of these new judicial powers were liberal forces that made litigation a major weapon in their arsenal. Civil rights groups, through fed— eral court suits, launched successful assaults on southern school systems, state and local governments, and legislative districting schemes; these groups could not possibly have altered such insti- tutions in the electoral arena. Environmental groups used the courts to block the construction of highways, dams, and other pub- lic projects that not only threatened to damage the environment but also provided money and other resources to their political ri- vals. Women‘s groups were able to overturn state laws restricting abortion as well as statutes discriminating against women in the labor market. Congress helped liberal interest groups make use of the federal courts for these purposes. “Citizen suit” provisions of a number of 2 regulatory statutes enacted during the 19705 gave public interest 2 groups the right to bring suits challenging the decisions of execu- tive agencies in environmental cases. Congress also authorized pub- ‘. lic interest groups to serve as “private attorneys general” and to i finance their activities by collecting legal fees and expenses from " their Opponents—generally business firms or government agen— - cies—in such suits. I mtitutional C man 149 During the 19605 the Supreme Court supported Congress in its struggles with the White House. It refused to permit the Nixon administration to block publication of the Pentagon Paperr. It or- dered the president to turn over the Watergate tapes to the special prosecutor. During the Reagan administration the Court, in re- viewing the constitutionality of the Ethics in Government Act, upheld the designation of special prosecutors as instruments for in- vestigating misconduct in the executive branch. In the 19705 and 19805 conservatives reacted to the alliance between liberals and the courts by attempting to restrict the power of the federal judiciary, For example, when the Republicans gained control of the Senate in 1981, North Carolina Senator Jesse Helms introduced legislation seeking to strip the Supreme Court of its ju- risdiction over a number of matters of concern to the new right. That same year the Reagan administration announced a policy of nonacquiescence that would limit the courts’ ability to interfere with the administration’s effort to purge some 490,000 recipients from the Social Security disability rolls. Under this policy the So- cial Security Administration would obey lower federal court orders to reinstate a particular individual who had been dropped from the rolls but would not recognize such an order as precedent in any other case, The administration issued assurances that it would rec— ognize US. Supreme Court decisions as precedent, but because it planned to avoid appealing adverse rulings to the Supreme Court, there would be no such precedents. In these and other instances, liberal Democrats took the lead in defending the power and prerogatives of the courts. The Helms court—stripping legislation was defeated in 1981. In 1984 Congress adopted the Social Security Disability Reform Act, which required the administration to accept lower court rulings as precedent in the federal judicial circuit in which they were made. Under further pressure from congressional hearings, the administration in 1985 was forced to abandon the policy of nonacquiescence entirely.17 The expansion of judicial power during the 19605 and 19705 increased the stakes involved in the judicial appointment process. ...
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