Abusing Judicial Systems in Pursuit of Public Policy

There is an unfortunate trend in the United States – and to a lesser extent in Israel and Europe – to use the judicial system not to resolve specific disputes, but to accomplish broad public policy goals. It is now so prevalent it has its own term, lawfare, derived from mashing together “law” and “warfare.” This problem is encapsulated in a recent decision by the Ninth Circuit Court of Appeals addressing the children’s lawsuit about climate change.

In a nutshell, a group of children – more cynically, a group of activists and activist lawyers using children as a front – filed a lawsuit against various members of the U.S. government claiming that their constitutional rights were being violated because the federal government was not, in their view, adequately addressing the issue of climate change. Some plaintiffs claimed psychological harms, others impairment to recreational interests, others exacerbated medical conditions, and others damage to property.

The trial court sitting in Oregon, not surprisingly, decided that it could hear the case. It concluded that if the plaintiffs proved that the government was not adequately addressing climate change, it could then start issuing orders to the government as a whole on every issue that might impact climate change. The case then came to the Ninth Circuit on an early review.

Somewhat surprisingly, by a 2-1 decision, even the reliably liberal appeals court determined that the case was not appropriate for judicial resolution. It assumed that a constitutional right was at stake (itself a questionable proposition), but determined that the courts were not appropriate to solve the problems. The court found that “it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”

But this case, although just barely kicked out of the judicial system, is only the most extreme attempt to fashion public policy in the courts. The number of public policy cases has skyrocketed. Not only advocacy groups, but state attorneys-general have become involved in attempting to make, or remake, policy in the courts. While some of the recent increase may be attributed to the unique attributes of the Trump administration, it is clear that this has now been entrenched as a tool for both the Left and the Right to deploy.

The temptation is clear. In a democracy, working through the elective process is long and arduous. One has to organize to support candidates, raise money, get them elected, and then those politicians must actually do the work of legislation. How much simpler it is to just race into a receptive court and convince one person wearing a robe to do what you want? Set aside that in the United States that means that national policy could suddenly be set by one of over a thousand judges in any one of 94 judicial districts rather than by the president or the Congress.

Making things worse, no one has the moral high ground here. When Obama was president, he was peppered with such suits. There already are far more in the current administration even though it is only three years along. The next administration. Republican or Democrat, will be similarly attacked.

Not only does this shortcut approach to making public policy distort the court system which is designed principally to resolve discrete limited disputes, it eviscerates the legislature and the executive. Lawmakers no longer have the obligation to address difficult issues in the give and take democratic process, they can simply posture and wait for a judge to fix things. It further removes citizens from the debate because the matters are now being resolved in districts far from home in a legal context that is alien to most voters.

This must stop. Recently, the U.S. Supreme Court indicated that at least one aspect of these cases – the “cosmic injunction” in the words of Justice Gorsuch – should be substantially restricted. But even if this occurs, it is still only one aspect of this pernicious problem.

Returning courts to their normal roles will force everyone to re-engage with the democratic process. Climate change may indeed need to be addressed more vigorously. Certainly other issues, such as immigration, healthcare, and the like may also require real work by the government. But the burden and the benefit of democratic systems are two sides of the same coin. Matters affecting a nation as a whole should be addressed by that nation as a whole, not by one person in one courtroom.

About the Author
Evan Slavitt is the Senior Vice President, General Counsel and Corporate Secretary for an international corporation where he oversees all legal and environmental matters. Before joining AVX, Mr. Slavitt was a partner in Bodoff & Slavitt, LLP, where he concentrated his practice in complex commercial litigation and white-collar criminal defense. Mr. Slavitt is a frequent author and lecturer on legal matters as well as the author of one work of fiction. He is a graduate of Phillips Exeter Academy, Yale University (B.A. and M.A. in economics) and the Harvard Law School, where he served as an editor of the Harvard Law Review. Mr. Slavitt was an assistant U.S. attorney from 1983 to 1987.
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