Judicial Compulsions: How Public Law Distorts Public Policy, by Jeremy Rabkin, New York: Basic Books, 322 pages, $22.95
Analyses that inquire whether an activity should be carried on at all, rather than what its limits should be, are fundamental. In Judicial Compulsions: How Public Law Distorts Public Policy, Jeremy Rabkin provides such an analysis. Focusing on judicial review of actions by regulatory agencies, Rabkin offers a high-level argument with profound implications for judicial review of public law in general.
The problem, according to Rabkin, is the judicial belief "that if an advocacy group could show that it would obtain better results from a different construction of an agency's legal duties, the group deserves a day in court to urge its own view of what the law requires. And if the judge then thinks there is merit in the legal argument, he feels compelled to push the agency in this direction. The inevitable result is that interest groups are encouraged to regard their policy preferences as claims of legal 'right,' and policy decisions become mired in legalism. Judicial compulsions become policy compulsions. The way to break the compulsion is to return to the traditional constitutional view that only individual persons have rights and that legally protected rights must involve individualized claims, like liberty or property." Thus Rabkin offers us a legal argument for reducing legalisms.
Part of the problem, Rabkin rightly notes, is that interest group activities have fallen into disrepute as somehow lacking the flavor of exalted action under the label of "public interest." Hence the politics of persuasion among citizens is downgraded and the politics of legal rights is elevated. A liberal church sues to prevent the Federal Communications Commission from renewing the license of a television station that the church believes has not adequately served black viewers. An environmental group gets a court to order the Department of Agriculture to ban a pesticide—that is, to take a positive action the group sees as desirable. Such cases are brought in the name of general categories of people, some of whom may actually agree with the purpose of the lawsuit while others do not, and most of whom are not aware of what is happening. The government agency, the only entity with a claim to stem even indirectly from the people, is left on the sidelines.
In the name of reducing the influence of private-interest politics, the public interest is turned into whoever wants to speak for some segment of the population. Thus, a group of self-designated public-interest lawyers might seek a ban on the use of certain chimney-cleaning chemicals. Speaking on its own behalf and (without authorization) on behalf of chimney sweeps, the group would claim to represent the public at large.
The view that certain interests are underrepresented in the American political system and that others are overrepresented, and that this inequality violates "rights," underlies the new interpretation of administrative law. The old doctrine, summarized by John Marshall's Court, that "it is only where rights of persons or of property are involved…that courts of justice can interpose relief' has been superseded by a different doctrine that "allows legal advocates to exercise the claims (or in the rhetoric of the advocate, 'the rights') of other people without the consent of those other people and, most of the time, even without their knowledge." In the past, individuals had to show that they were the actual victims of a violation of their rights before courts would grant them redress; it was not possible to obtain preventive action against those who might violate rights in the future. Now it often is.
This process of creating new rights for classes of individuals at the behest of strangers, Rabkin argues, is in effect the delegation of power not from the executive to Congress but from Congress to private advocates. It must, as it has already in regard to prisons, mental institutions, and other facilities, give the courts the power to impose taxation—to call upon the collective resources of society to satisfy the claims of one set of interests on others.
The creation of new rights under new interpretations of administrative law also implies that the courts are better guarantors of policy execution or indeed of liberty than are presidents and legislators. How then justify holding presidents and congresses responsible for what has willy-nilly gone to the courts? "The more government is accountable to private litigants, then," Rabkin concludes, "the less it can be accountable to anyone else." And he bolsters his position with a number of detailed case histories involving civil rights advocacy groups, food and drug policies, and occupational health standards.
Few readers will subscribe to all of the opinions about the respective roles, competencies, and powers of the various branches of government that Rabkin freely dispenses. Like the courts he criticizes and the students of politics he wishes to influence, he has a view of how our constitutional system should work. Rabkin is most persuasive in accomplishing two tasks. One is to involve the reader in high-level thought about the respective roles of our major institutions, especially the legal doctrines justifying treating groups as individuals and individuals as groups. The second (and, to me, more important) is his elevation of ordinary politics from a vulgar necessity to an essential principle.
One way of influencing public policy is for a lawyer in a cubicle to write a memorandum called a brief to a lawyer in a larger room called a judge who will then render an opinion about what ought or ought not to be done about abortion or the death penalty or whatever. Another way is for us as citizens to argue and plead and demonstrate and eventually persuade each other about the right courses of action or about some compromise, or even decide that we have had our day in the court of public opinion and must now go on to something else. When things are done the legalistic way, a few citizens are satisfied, and everyone else feels that their views have not been heard. How, then, can citizens legitimate these decisions as democratic?
Aaron Wildavsky is a professor of political science and public policy at the University of California, Berkeley, and author of Searching for Safety.
This article originally appeared in print under the headline "The Politics of Legal Rights".